Read the following excerpt from a US court opinion:
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is sued for breach, it may defend on the ground that there existed a legal excuse for its nonperformance at the time of the alleged breach. Faced with two parties to a contract, each of whom claims breach by the other, courts will “often ... impose liability on the party that committed the first material breach.” Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1380 (Fed.Cir.2004) (citations omitted) F.3d 1260 (Fed.Cir.1999) (explaining contractor obligated to adhere to contract’s dispute clause because Government’s breach was not material ); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 727 (Fed.Cir.1998) (justifying termination of employment after employee’s material breach of “last chance” employment agreement); Thomas v. Dep’t of Housin .2d 1273, 1279 (Fed.Cir.1985) . 2. Restitution Outside of the FIRREA context,
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract
B. holding fraud committed by contractor amounted to material breach justifying governments termination of contract
C. holding that independent contractor claiming termination of contract in retaliation for petition was not protected by first amendment
D. holding that a contract must entitle the plaintiff to money damages in the event of the governments breach of that contract
E. holding contractor liable for total or material breach thus excusing government from payment of contract price
Reply with [A, B, C, D, E] only.