Albert engaged Bertha, an inexperienced actress, to do a small role in a new Broadway play for a period of six months at a salary of $200 a week. Bertha turned down another role in order to accept this engagement. On the third day of the run, Bertha was hospitalized with influenza and Helen was hired to do the part. A week later, Bertha recovered, but Albert refused to accept her services for the remainder of the contract period. Bertha then brought an action against Albert for breach of contract. Which of the following is Bertha’s best legal theory?
A. Her performance of the literal terms of the contract was physically impossible.
B. Her acting contract with Albert was legally severable into weekly units.
C. Her failure to perform for one week was not a material failure so as to discharge Albert’s duty to perform.
D. Her reliance on the engagement with Albert by declining another acting role created an estoppel against Albert.
E. Under common law, a material breach of contract occurs when the non-breaching party does not receive the substantial benefit of its bargain and permits the withholding of any promised performance and the pursuit of remedies for the breach. If Bertha is able to successfully argue that a one-week loss of work was not material, but a minor breach, she would be able to recover damages.