For a party-kit contract, a company agreed to deliver 500 kits to the buyer by November 1. Selections of kit types and quantities were to be made by October 15, but neither side made selections by that date. On October 16, the company claims breach and refuses to ship. On October 17, the store tells the company its selections, but the company declines to ship. The company had surplus and could fill any combination. Which statement is true?

• A. The store's two-day delay in making its selection is a material breach excusing performance.
• B. The delay constitutes a material breach.
• C. The contract is void because selections were late.
• D. The store's two-day delay did not affect the company's ability to perform; there is no material breach.

Answer: (D)

The key idea is how a time delay affects material breach when performance remains possible. A two-day delay in the buyer’s selections does not impair the seller’s ability to perform here because the seller had surplus and could fill any combination to meet the 500 kits. Time is not stated to be of the essence, so a short delay by the buyer does not automatically constitute a material breach. Since the seller could still deliver the required quantity of kits regardless of which types were selected, there is no substantial impairment of the contract’s purpose. Therefore, the store’s two-day delay did not excuse performance, and there is no material breach.