6. Excuse of NonPerformance - Post Contract Events

Question 1

Anticipatory Repudiation is

Answer 1

an UNAMBIGUOUS statement/conduct (1) that the repudiating party will not perform (2) made prior to the time that performance was due.

Question 2

Anticipatory Repudiation by one party will

Answer 2

excuse the other party’s duty to perform.

Question 3

Anticipatory Repudiation UgenerallyU gives rise to an immediate claim for damages for breach UNLESS

Answer 3

the claimant has already finished their performance.

Question 4

Anticipatory repudiation can be withdrawn (retracted), so long as

Answer 4

there has not been a material change in position by the other party.

Question 5

Insecurity about potential nonperformance, remedies and requirements:

Answer 5

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

Question 6

Perfect Tender and UCC Article 2, holds:

Answer 6

Anything less than perfect tender excuses performance.

Question 7

Material Breach and Common Law:

Answer 7

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.

Question 8

A breach will be material if

Answer 8

one party does less than 1/2 of the contract.

Question 9

In a “divisible contract” there can be a contract law recovery for substantial performance of

Answer 9

a divisible part even though there has been a material breach of the entire contract.

Question 10

Express Conditions and Adequacy of Performance. General Rule:

Answer 10

Strict Compliance is required for ‘satisfaction’ of a condition.

Question 11

If express condition requires personal satisfaction with the work, the standard will be

Answer 11

that of a reasonable person.

Question 12

Waiver of express condition,

Answer 12

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.

Question 13

Conditions Precedent are

Answer 13

conditions that excuse performance until and unless they occur.

Question 14

Conditions Subsequent are

Answer 14

conditions that occur after the start of performance and excuse performance when they occur.

Question 15

A rescission will have effect if

Answer 15

performance is still remaining from each of the contract parties. If performance is incomplete, rescission will be valid.

Question 16

Effect of Accord (new agreement) and Satisfaction (performance):

Answer 16

If the new agreement is performed, then performance of the original obligation is excused.

Question 17

If the accord is not performed, the other party can recover on

Answer 17

either the original obligation OR the accord.

Question 18

Modification is an agreement by parties to an existing obligation to accept

Answer 18

a different agreement in satisfaction of the existing obligation.

Question 19

A novation is an agreement between

Answer 19

BOTH parties to an existing contract to the substitution of a new party. i.e. same performance, different party.

Question 20

After a novation, liability shifts and excuses

Answer 20

the contracted performance of the party who is substituted for or replaced.

Question 21

Difference between Delegation and Novation:

Answer 21

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.

Question 22

The general effect of a party’s death on contract obligations:

Answer 22

Death does UnotU make a person’s contract obligations disappear. (Otherwise nobody would contract with old people)

Question 23

Exception to the continuance of obligations after death of one party:

Answer 23

Death of a party to a contract who is a “special” person will excuse performance.

Question 24

If a later law makes the performance of a contract illegal,

Answer 24

then performance will be excused by “impossibility.”

Question 25

If a later law makes the mutually understood purpose of the contract illegal, but not the contract itself,

Answer 25

performance will be excused by “frustration of purpose.