When Silence Is a Breach: The Overlooked Danger of Failing to Respond in Business Contracts

Meta Summary: Ignoring a contract dispute or failing to respond can lead to a costly breach. Learn when silence becomes legally actionable and how to protect your business.

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Why Silence Can Be Costly

Imagine this: Your company delivers goods under a contract. The other party stops replying—no complaint, no objection, no payment. Weeks go by. Was their silence a breach? Could yours be?

In business contracts, silence isn't always golden. In fact, silence can be a breach. Knowing when inaction crosses the legal line is critical to avoiding or winning a dispute in court.

Understanding Breach of Contract: More Than Just Actions

Under both New York and New Jersey law, a breach of contract occurs when a party fails to perform a required obligation without lawful excuse. This can include a failure to deliver goods, provide services, or even respond to contractual communications when the agreement demands it.

When Silence Becomes a Breach

There are several real-world situations where silence may legally qualify as breach:

• Ignoring Time-Sensitive Communications: Failing to respond to emails or letters regarding deadlines, renewals, or approvals may violate the implied duty of good faith.
• No Response to Cure Notices: If a contract includes a “right to cure” and one party sends notice, the failure to reply may forfeit that opportunity and confirm breach.
• Brokerage & Lease Agreements: In real estate and commercial leases, silence regarding a commission claim or assignment may waive rights—or breach an implied obligation to act.
• Consent Clauses: In many contracts, failing to consent or reject a request within a reasonable time is considered a breach of the implied duty to cooperate.

Case Law: Silence That Triggered Legal Consequences

New York Example: In Dellicarri v. Hirschfeld, 210 A.D.2d 584 (3d Dept. 1994), the court found that a failure to respond to a request regarding contract performance, paired with other conduct, amounted to anticipatory repudiation.

New Jersey Example: In Caponigro v. 2000 Century, Inc., 355 N.J. Super. 597 (App. Div. 2002), a defendant’s prolonged silence following a demand letter was cited in determining breach and refusal to cure.

Scenarios Where Silence Leads to Disputes

• Commercial Lease Renewals: A tenant emails to exercise a renewal option. The landlord says nothing. A battle ensues.
• Brokerage Commission Confirmations: Brokers email confirmation of earned commission. The silence of the landlord leads to litigation.
• Construction Closeouts: A punch list is delivered. No response is received. The contractor walks. A breach dispute follows.
• Shareholder Offers: A buyout proposal is sent. No answer is given. The delay causes damages and sparks suit.

How to Protect Yourself in Writing

Whether you’re the one sending or receiving communications, here are key strategies:

• Document everything: Emails, certified mail, even text messages can become crucial evidence.
• Use deadlines: Specify clear response dates in your communication (“Please respond by…”).
• Formal follow-ups: Send a second notice if there’s no reply. If the silence continues, escalate appropriately.
• Spell it out in contracts: Include provisions that require responses within specific timeframes, and define silence as waiver or breach where appropriate.

If You’re Being Ignored—What Now?

If your contractual counterparty goes dark:

• Send a formal demand letter via certified mail.
• State your position clearly and note that failure to respond may constitute breach.
• Consider filing a complaint or seeking declaratory relief to resolve the matter swiftly.

Conclusion: Don’t Assume Silence Is Safe

Silence might feel harmless, but in contract law, it can cause serious damage. Whether you’re a business owner, real estate investor, or service provider, failing to act—or being ignored—could make or break your case.

Need help navigating a contract dispute?

Contact Jesse David Eisenberg at JDE Law Firm, PLLC. We represent clients across New York and New Jersey in breach of contract matters—including silence-based disputes.

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📞 NY Office: 718-966-0877 | NJ Office: 732-490-7120
🌐 www.jdelaw.nyc