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When a lawyer talks about a material breach, he or she is referring to a material breach of contract. This is where a violation of the agreement which the parties to a contract have agreed is so serious that the non-breaching party has the right to terminate the agreement and/or bring a claim for damages against the breaching party. A provision will usually be included in the agreement allowing for a party to terminate the agreement in the event of a material breach of the agreement by the other party. Thus, if a breach is not material, the injured party will only be able to claim damages, not terminate the agreement.

One of the problems of the material breach provision is that there is usually no definition of the term in the agreement, so it is up to the courts to determine what constitutes a material breach in a given situation. So, it may be difficult for the parties to know when a material breach has occurred.

Where no provision is included in an agreement allowing for termination for material breach, an injured party may be entitled to terminate the agreement under common law where a breach is so serious as to go to the root of the contract. This is referred to as a fundamental breach or repudiatory breach of contract. A breach of this nature includes a breach of a condition of the contract, such as the title, description or quality of the goods.