Multiple Contracts or One Contract? The ‘Reverse Divisibility’ and ‘Subsequent Modification’ Arguments for Expanding the Scope of Justified Non-Performance After Breach

Abstract

The basic principles of divisibility that define the circumstances under which a single contractual agreement can be recharacterized as multiple separate agreements are well established and are standard fare in basic contract law courses and texts. However, little if any attention is paid in law school or in legal practice to the possibility of a person arguing for what one might call “reverse divisibility,” or “subsequent modification,” the recharacterization of a set of closely related (although facially separate) contracts among two or more parties as being a single contract. While people will often invoke divisibility arguments in an attempt to limit the justified non-performance consequences of a breach of contract on their part, a person may also seek to have a set of facially separate but closely related contracts recharacterized as a single contract in order to expand the scope of their own justified non-performance rights after a breach by the other party to the contract. This short article will discuss this possibility.