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Construction Law
to an independent cause of action for damages or a material breach excusing the non-breaching party from performance of the entire contract.
Accordingly, failure to give written notice required by a contractual provision does not automatically constitute a material breach of the contract excusing performance of the entire contract. Instead, whether a lack of written notice constitutes a material breach of the contract must still be interpreted within the context of the provision at issue, the contract at issue, and the facts of the case. Moreover, given the principle that minor deviations from a contractual notice provision must “severely impair the purpose underlying the condition,” the requirement of the writing likely must be integral to the purpose of the contract at issue to constitute a material breach.
Second, what constitutes a “writing,” and whether that writing is sufficient, is still open to interpretation and may be a substantial point for dispute. As you’ll remember, in James v. Westlake, there were three contractually required written notices. It was undisputed that the third—written notice of termination—was never provided. However, while skeptical, the court was not definitively clear on whether the first—written notice that “in its reasonable opinion James has serious safety violations”—was satisfied. There, Westlake had forwarded an email discussing a recent safety violation and discussed conducting a safety review with James, which eventually occurred. The court eventually concluded that it was “questionable whether the email qualified as the requisite first notice.”
There are several takeaways from this portion of the opinion. For starters, there may be a relativity low threshold as to what constitutes a “writing.” Email seemingly complies. To that end, it’s arguable that text messages, other digital direct messages, handwritten notes, and other forms of writing may satisfy the condition that notice must be given in writing. The court’s reference to Barbier v. Barry—where the court held that the failure to send notice of cancellation by registered mail, as required by the contract, satisfied the condition precedent where the notice was received—supports this argument. Accordingly, parties to a contract and their agents should carefully consider the form of “writing” that may constitute written notice under a contract.
Additionally, the court’s opinion seems less strict in considering whether the content of a writing satisfies a contractual provision, as compared to whether there was a writing at all. Notably, the court cited In re G.D.H, a family law case wherein the Amarillo court of appeals held that a mother’s failure to give all detail of a child’s vacation to the father, as required by the custody agreement, did not mean the mother had not complied with the condition precedent because “it contained the bulk of the requisite information.” As a result, while the court was skeptical of the email exchange in James v. Westlake, what is clear is that, unless specified by the contract, the contents of a writing are more open to satisfaction that the failure to give a writing at all. Accordingly, the burden is placed on those drafting contracts to clearly specify what a writing must contain to satisfy the particular provision at issue. The same is obviously true for those whose duty it is to comply with those writing provisions.
In any event, while it has been steadfast that Texas courts will not ignore the clear terms of a contract to bail a party out of its contractual duties, this opinion reinforces the scope of that principle and provides a clear mandate to those who must comply with its terms.
Shelly D. Masters is a Principal at Cokinos | Young in Austin, TX. Contact her at: Brian Pounds is an Attorney at the firm. Contact him at:

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