12. Excuse Flashcards
How may hindrance/failure to complete duty to perform excuse a condition?
‘Wrongful’ prevention
- Other party would not have contemplated/reasonably assumed such risk
- No bad faith/malice required
How may actual breach of condition when performance is due excuse a condition?
Article 2
- Breach => Automatic excuse
Common law
- Major breach => Automatic excuse
- Minor breach => Suspend duty (courts can award damages/mitigate performance of non-breaching party)
How may anticipatory repudiation excuse a condition/cause a breach?
1) Bilateral contract
- Neither party yet performed
- Otherwise non-repudiating party (who performed) must wait to sue until repudiating party’s performance was originally due
2) Unequivocal statement (repudiation) before performance due
- Words/Conduct
How may substantial performance excuse a condition?
1) Minor breach
2) Constructive condition
- NOT express condition (defeats parties’ express intent)
3) Common law
- NOT Article 2 (Perfect tender rule)
=> Non-breaching party can mitigate damages suffered for incomplete performance
How may waiver excuse a condition?
Estoppel waiver
1) Indicate/Waive before occurence
2) Other party detrimentally relied on waiver
- UNLESS retracted
Election waiver
1) Condition not occurred/Performance is broken
2) Beneficiary either terminates liability (no duty to perform)/continues contract by waiving condition (duty to perform)
Instalment contracts
1) Waiver before occurrence
2) Other party detrimentally relied on waiver
3) Consideration!!!
Are waivers revocable?
If NO consideration is given => Yes
How may destruction of goods excuse a condition?
Impossibility
Impracticability
Frustration
How may a divisible contract excuse a condition?
(Similar to substantial performance)
If party performs unit => Party is entitled to agreed-on equivalent for that unit
If party fails unit =>
1) Other party has cause of action for other units
2) Other party can withhold own performance for other units
What is required for a divisible contract?
Common law (presumed divisible)
1) Each party’s performance is divided into +2 parts
2) No. due parts from each party is same
3) Each party’s performance is equivalent of corresponding part
- Otherwise courts may interpret as divisible based on fairness (avoid hardship/forfeiture)
=> Price per unit
Article 2 (presumed entire, not divisible)
1) Authorised delivery in several lots
2) Apportioned price for each lot
=> Price deemed for each lot
How may prospective inability/unwillingness to perform excuse a condition?
1) Conduct/words
2) ‘Merely’ raises doubts of performance
- NO adequate assurance => Excuse (repudiation)
How may prospective inability/unwillingness to perform not excuse a condition?
1) Conduct/words
2) ‘Merely’ raises doubts of performance
- Adequate assurance => NO excuse (suspends duty to perform until assurance received)
- Response within reasonable time (within 30 days - sale of goods) => NO excuse (suspends duty to perform until assurance received)
- Regains ability to perform + notifies other party => Retraction
Can a party receive adequate assurance for another’s prospective ability to perform a different contract?
Yes
