General Principles of Contracts; (part 12) forms of breach

In this segment, I will endeavour to list the names of the different types of breach of contract, just so that you can recognise and understand them at a fundamental level:

Positive Malperformance

This occurs where there has been performance but the content or quality of the performance is not in accordance with the contract terms. For example, a music producer provides a master to the record company, but the master is so poorly mixed that it cannot be said he has provided a reasonable quality of work, by normal industry standards. Or the contract requires a 5.1 surround mix, and the producer provides normal stereo. Or the seller of a recording studio breaches his restraint of trade and opens in competition with the buyer in the prohibited area and time.

Prevention of Performance

This type of breach occurs when one of the parties (the debtor) renders his own performance impossible before or after the date on which performance is set to take place. (For example, a producer negligently wipes out his Pro Tools session before he can deliver the master to the record company). It might also be that the creditor prevents the debtor's performance: e.g. just as a contracted artist is about to perform on stage, the promoter negligently drives over the generator cable and permanently kills the power to stage. It cannot be repaired. In this case, the debtor (the artist) cannot perform due to the creditor's (the promoter's) negligent prevention of the debtor's performance, and therefore cannot successfully be sued. Where prevention of performance occurs, the party causing it (if he does so negligently or intentionally) is liable in terms of the contract.

Repudiation

This takes place where a party to the contract communicates his intention to the other party that he no longer wishes to be bound by the contract. This can take place verbally or by way of conduct, (e.g. booking a band for a night at your club which only ever has one band at a time, and then simply booking another band in their place. This behaviour is repudiation, just as if you had phoned the first band and cancelled).

Delay by the Debtor (Mora Debitoris)

This occurs where the debtor does not perform timeously in terms of the contract. Performance is still possible, and the delay is due to the fault of the debtor. The obvious example of this is simple failure to pay as agreed in the contract.

Delay by the Creditor (Mora Creditoris)

This is where the creditor fails to accept performance by the debtor. As with mora debitoris, the performance must still be possible and the delay must be as a consequence of the creditor's fault. An example of this would be booking a session musician for a recording then not allowing him access to the studio at the appointed time.

That concludes the series on General Principles of Contract. As you can see, although these principles are applicable to all contracts, there are numerous music industry examples that can be used to illustrate them, and this is no coincidence - they come up in the music business all the time. It is vital that you understand these general principles before you can understand the specific points particular to music industry contracts that you will no doubt encounter during your career.

The list of possible contracts in the music industry is a long one indeed - probably hundreds of different types. But if we were to list the most common ones (only), I suppose the list would look something like this:

1. Recording agreement 2. Publishing agreement (Exclusive Songwriter Agreement) 3. Artist management agreement 4. Distribution agreement 5. Pressing and distribution agreement 6. Producer/Artist production agreement 7. Producer/record company General agreement 8. Producer/record company (specific production) agreement 9. Mechanical license (release) 10. Film/video synchronisation license 11. Master use license agreement 12. Artist and producer development agreement 13. Musician/vocalist/arranger/work-for-hire (session) agreement 14. Sub-publishing agreement 15. Co-publishing agreement 16. Single song assignment/publishing agreement 17. Single song option 18. Copyright assignment 19. Radio recording release agreement 20. Artist and publicist agreement 21. Artist booking agreement 22. Festival/concert booking agreement 23. Sponsorship agreement 24. Agency agreement 25. Band partnership agreement 26. Royalty share agreement 27. Merchandising agreement