6. Excuse of NonPerformance - Post Contract Events Flashcards
(25 cards)
Anticipatory Repudiation is
an UNAMBIGUOUS statement/conduct (1) that the repudiating party will not perform (2) made prior to the time that performance was due.
Anticipatory Repudiation by one party will
excuse the other party’s duty to perform.
Anticipatory Repudiation UgenerallyU gives rise to an immediate claim for damages for breach UNLESS
the claimant has already finished their performance.
Anticipatory repudiation can be withdrawn (retracted), so long as
there has not been a material change in position by the other party.
Insecurity about potential nonperformance, remedies and requirements:
1) There must be reasonable grounds for insecurity.
2) There must be a written demand for adequate assurance.
3) It must be commercially reasonable to stop performance
Perfect Tender and UCC Article 2, holds:
Anything less than perfect tender excuses performance.
Material Breach and Common Law:
1) Damages can be recovered for any breach.
2) Only a material breach by one party will excuse the other party from performing a CL contract obligation.
3) Whether a breach is material is a fact question.
4) If there is substantial performance then the breach is not material.
A breach will be material if
one party does less than 1/2 of the contract.
In a “divisible contract” there can be a contract law recovery for substantial performance of
a divisible part even though there has been a material breach of the entire contract.
Express Conditions and Adequacy of Performance. General Rule:
Strict Compliance is required for ‘satisfaction’ of a condition.
If express condition requires personal satisfaction with the work, the standard will be
that of a reasonable person.
Waiver of express condition,
1) Identify the party who benefits from or is protected by the express condition.
2) Look for a statement by that party giving up/waiving the benefits and protections of the condition.
Conditions Precedent are
conditions that excuse performance until and unless they occur.
Conditions Subsequent are
conditions that occur after the start of performance and excuse performance when they occur.
A rescission will have effect if
performance is still remaining from each of the contract parties. If performance is incomplete, rescission will be valid.
Effect of Accord (new agreement) and Satisfaction (performance):
If the new agreement is performed, then performance of the original obligation is excused.
If the accord is not performed, the other party can recover on
either the original obligation OR the accord.
Modification is an agreement by parties to an existing obligation to accept
a different agreement in satisfaction of the existing obligation.
A novation is an agreement between
BOTH parties to an existing contract to the substitution of a new party. i.e. same performance, different party.
After a novation, liability shifts and excuses
the contracted performance of the party who is substituted for or replaced.
Difference between Delegation and Novation:
Novation requires the agreement of BOTH parties to the original contract, and excuses the replaced party from nonperformance liability. Delegation is unilateral and does NOT excuse.
The general effect of a party’s death on contract obligations:
Death does UnotU make a person’s contract obligations disappear. (Otherwise nobody would contract with old people)
Exception to the continuance of obligations after death of one party:
Death of a party to a contract who is a “special” person will excuse performance.
If a later law makes the performance of a contract illegal,
then performance will be excused by “impossibility.”