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bar Contracts > 7th issue: Ecuse of nonperformance of K (b/c of something that happened (or did not happen) AFTER K was made > Flashcards

7th issue: Ecuse of nonperformance of K (b/c of something that happened (or did not happen) AFTER K was made Flashcards

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1
Q

overall what to look for when EXCUSE of nonperformance of K

A

1) nonperformance of K and

2) SOMETHING HAPPENING (or not happening) AFTER K

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2
Q

excuse of performance b/c other party’s nonperformance

A

not pay because other party did not perform

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3
Q

excuse of performance b/c b/c other party saying it isnt going to perform is what

A

anticipatory repudiation

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4
Q

what needs to happen for anticipatory repudiation

A

1) UNAMBIGUOUS: statement or conduct that is
2) repudating party will not perform
3) made PRIOR to the time that performance was due

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5
Q

when does anticipatory repudiation happen

A

PRIOR to the time that performance is due

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6
Q

when can a party recover for anticipatory repudiation

A

generally: gives rise to an IMMEDIATE claim for damages breach

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7
Q

can party recover immediately for anticipatory repudiation

A

generally YES

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8
Q

x/c for when must wait under anticipatory repudiation to bring claim

A

the claimant has already finished performance

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9
Q

when can anticipatory repudiation be withdrawn

A

so long as there has not been a MATERIAL CHANGE in position by the other party.
- if the repudiation is timely retracted, the duty to perform is reimposed but performance can be delayed until ADEQUATE ASSURANCE is provided

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10
Q

if the repudiation is timely retracted, the duty to perform is reimposed but can be delayed until when

A

until ADEQUATE ASSURANCE is provided

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11
Q

does anticipatory repudiation need to be unambiguous

A

YES must be express and unambitious

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12
Q

sale of goods problem for insecurity

A

if words or conduct of one party give “REASONABLE GROUNDS FOR INSECURITY”, then the other party can, in writing, demand adequate assurance and if it COMMERCIALLY reasonable can suspend performance until it gets adequate assurance

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13
Q

sale of goods problem for insecurity elements

A

1) REASONABLE grounds for insecurity, and
2) WRITTEN DEMAND for adequate assurance and
3) COMMERCIALLY REASONABLE to stop performance

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14
Q

what is the excuse for improper performance for sale of goods

A

PERFECT TENDER RULE

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15
Q

what is excuse for improper performance for CL

A

MATERIAL BREACH

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16
Q

what are the 2 types of material breach under CL

A

1) material breach b/c of QUALITY of PERFORMANCE

2) material breach b/c of QUANTITY (amount) of performance

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17
Q

can damages be recovered for any breach

A

YES

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18
Q

under CL does every breach excuse performance

A

NO

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19
Q

under CL when will something not be a material breach

A

If there was SUBSTANTIAL PERFORMANCE then the breach is not material \
- if the breach was material ,then the performance was not substantial

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20
Q

what to remember for damages breach

A

1) every breach is allowed to get $ damages

2) CL only MATERIAL breaches EXCUSE performance

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21
Q

CL: what is the material breach b/c of quanitity (amount) of performance (divisible k)

A

therecan be a K recovery for SUBSTANTIAL PERFORMANCE of a divisible part even though there has been a material breach of entire K
- look to w/e price is stated as lump sum or on PER PERFORMANCE basis

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22
Q

how to determine if divisible K

A

look to w/e price is stated as lump sum or on PER PERFORMANCE basis

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23
Q

what is the common example of excuse of performance b/c of nonoccurrence of an EXPRESS condition

A

home sale K for getting a mortgage

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24
Q

what does an express condition do

A

LIMITS obligations created by other contract languge

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25
Q

triggering words for express condition

A

1) IF
2) ONLY IF
3) provided that
4) so long as
5) subject to
6) in the event that
7) unless
8) when
9) until
10) on condition that

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26
Q

ex of express condition

A

S and B enter into an AGREEMENT THAT STATES that B will buy and S will sell for 1k “on the condition that” a mortgage is no more than 4%

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27
Q

what is the std to determine if an express condition has occurred

A

STRICT COMPLIANCE is required for “sanctification” of condition

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28
Q

x/c for strict compliance of express condition

A

1) forfeiture: enforcement of condition would cause excessive harm to B
2) personal sanctification of one of the parties: honest and good faith dissatisfaction

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29
Q

is a condition fr personal satisfaction of one of the parties illusory promise

A

NO, has good faith dissatisfaction

1) w/e a reasonable person would be satisfied

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30
Q

who is the only person that can waive the express condition

A

ONLY PERSON PROTECTED by the condition can waive the condition

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31
Q

what is difference b/w conditions precedent and subsequent

A

precendent: excuse performance until and unless the condition occurs FIRST
2) subsequent: occurs after the start of performance and excuses further performance

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32
Q

do the conditions subsequent follow same laws as precedent

A

YES

  • merely limit performance obligations otherwise created.
  • require strict compliance
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33
Q

excuse by reason of a later K (4)

A

1) rescission (cancellation)
2) accord and satisfaction (substituted performance)
3) Modification (substituted agreement)
4) novation

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34
Q

recession (cancellation)

A

w/e performance is still remaining from each of the K parties (executory)

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35
Q

what does accord mean for excuse of K

A

parties already existing obligation to accept a DIFFERENT PERFORMANCE in satisfaction of existing obligation

36
Q

do you need both accord and satisfaction to excuse K

A

YES

- if new agreement ( accord) is performed (satisfaction), then performance of the original obligation is excused

37
Q

what if the satisfaction is not completed for the accord, what can the other part do

A

pick EITHER

1) original K OR
2) accord if no satisfaction to sue on

38
Q

for modification (substituted agreement) can the non breaching party recover on the ORIGINAL K

A

NO. parties intended new K

39
Q

what is a modification

A

an agreement by parties to an existing obligation to accept a different AGREEMENT in satisfaction of the existing obligation

40
Q

words to look for accord instead of modification

A

If, THEN

41
Q

rules for accord and modification

A

1) accord if not performed does not excuse K

2) substituted agreement is excuse even if not performed for original agreement

42
Q

novation what is it

A

an agreement b/w BOTH parties to an existing K to the substitution of a NEW party
- same performance, different party

43
Q

who is liable AFTER novation

A

novation excuses the contracted for performance of the party WHO IS SUBSTITUTED OR REPLACED

44
Q

is the original party still liable for performance in the novation

A

NO

45
Q

how is delegation different than novation

A

1) novation: requires BOTH parties of original K to agree and EXCUSE person replaced from any liability of non performance
2) delegation: DOES NOT require the agreement of both parties and DOES NOT excuse liability

46
Q

generally what is the rule for impossibility (excuse from performance by a reason later unanticipated event)

A

1) which party is arguing that her performance is excused
2) what her performance is
3) w/e post contract occurrence affected her ABILITY to perform
- NOT JUST COST HER PERFORMANCE

47
Q

if damage or destruction of subject matter of contract ART II

A

do the risk of loss risk
1) risk of loss on the buyer
then buyer pas
2) if risk of loss on the seller: w/e the B can recover damages from the seller depends

48
Q

UCC what if the risk of loss is on the B

A

then buyer pays

49
Q

UCC: what if risk of loss is on the seller and the destruction of IDENTIFIED GOODS

A

if IDENTIFIED GOODS and destroyed than seller is excused

50
Q

UCC: what if risk of loss is on the seller and the destruction of anything no IDENTIFIED GOODS

A

then no excuse of performance and still must perform

51
Q

what if a LATER law makes performance of a K illegal

A

excused by impossibility

52
Q

what if a LATER law makes mutually understood purpose f K illegal

A

excuse by frustration of purpose

1) AFTER K
2) both parties KNOW of purpose of K AND
3) later event excused performance

53
Q

generally does DEATH AFTER a K destroy obligation

A

NO. GR: death on K does not make persons K obligations disappear

54
Q

does death of offer destroy offer

A

YES

55
Q

does death AFTER a K make the obligation disappear

A

NO

56
Q

x/c that death of party makes K disappear

A

SPECIAL person excuses performance

ex: will smith to perform

57
Q

when to use detrimental reliance

A
  • a factor in promissory estoppel
  • doctrine used to avoid unjust enrichment, when there is NO CONTRACT
  • only use it when NO K
58
Q

when will courts not give specific performance as a remedy

A

where a BFP for value took the property

59
Q

for personal service K where person is injured or sick are they discharged from performance by impossibility

A

yes, do not have to pay for damages

60
Q

does accord discharge a K

A

NO only suspends a K

61
Q

what is required for adequate assurances (elements)

A

1) REASONABLE (reasonably believes the other party can not perform)
2) WRITTEN demand for adequate assurances
3) if COMMERCIALLY reasonable (until the party so demanding receives adequate assurance, he may suspend his own performance.)

62
Q

when must a part give adequate assurances when demanded upon them

A

in a reasonable time frame.

  • if proper assurances are not given within a reasonable time frame, not to exceed 30 days, the party demanding assurances may treat the contract as repudiated
63
Q

what if proper assurances are not given within a reasonable time (not to exceed 30 days)

A

the party demanding assurances may treat the K as repudiated.

64
Q

when can a repudiating party withdraw repudiation

A

a repudiating party may at anytime BEFORE performance is due withdraw repudiation

x/c unless the other party has

1) canceled the K
2) materially changed his position in reliance on the repudiation or
3) otherwise indicated that he considers the repudiation final

65
Q

what is the x/c where a repudiating party may at anytime BEFORE performance is due withdraw repudiation

A

unless the other party has

1) canceled the K
2) materially changed his position in reliance on the repudiation or
3) otherwise indicated that he considers the repudiation final

66
Q

what does retraction of the repudiation do

A

reinstates the repudiating party’s rights under the K, if made before performance was due and the x/c do not apply

67
Q

Gr for promise to pay legal obligation barred by law

A

Gr: promise to pay legal obligation that is barred by SOL is enforceable.
- Past obligation enforceable, x/c SOL in way, courts will enforce new promise if

1) in writing or
2) part performance

68
Q

what is demand for adequate assurances

A

under art II if party has reasonably grounds for insecurity with respect to other party’s performance (reasonably believes the other party will not perform) he may demand assurances that the performance will be on time

69
Q

must a demand for adequate assurances be in writing

A

yes

70
Q

what if a party does not get adequate assurances once properly made

A

until the party so demanding receives adequate assurance, he may suspend his own performance

71
Q

when must a party give response to adequate assurances

A

within a reasonable time, not to exceed 30 days, the party demanding assurances may treat the contract as repudiated

72
Q

what if adequate assurances are not given within 30 days

A

the party demanding the assurances may treat the contract as repudiated

73
Q

what are the non breaching parties rights under repudiation when adequate assurances not given

A

1) may treat the repudiation as a total breach and sue immediately
2) suspend his own performance and wait and sue until the performance date
3) treat the repudiation as an offer to rescind and treat the contract as discharged or
4) ignore the repudiation and urge the builder to perform

74
Q

when can a repudiating party withdraw repudiation

A

any time before his performance is due

75
Q

when can a repudiating party not withdraw repudiation (Even if performance is not due)

A

1) the other party has canceled the contract
2) materially changed his position in reliance on the repudiation or
3) otherwise indicated that he considers the repudiation final

76
Q

how may withdrawal of repudiation be

A

in any manner that clearly indicates an intention to perform but must include any assurances justifiably demanded

77
Q

reformation requirement

A

must be an agreement and there must be a variance between the agreement and the writing

78
Q

What is reformation usually based upon

A

mutual mistake

79
Q

can there be reformation for unilateral mistake

A

no because no meting of the minds, so no agreement to which the writing can be confirmed

80
Q

unilateral mistake for rescinding contract

A

if only 1 party knows of the mistake about facts relating to the agreement and the nonmistaken party knew or should have known of the mistake, the contract is voidable by the mistaken party

81
Q

for CL the condition of complete performance can be excused how?

A

complete performance may be excused if the party has rendered SUBSTANTIAL performance

82
Q

how to determine if a breach is minor

A

if breach is minor the performance is substantial

83
Q

how to determine if a breach is major

A

if a breach is major, the performance is not substantial

84
Q

CL when will parties be excused from the contracts duties

A

when party fails to provide complete or substantial performance

85
Q

how to determine if the breach is major

A

court looks at

1) the amount of benefit received
2) the adequacy of damages
3) extent of performance,
4) hardship to the breaching party
5) w/e the breach was negligent or willful.

bar Contracts (8 decks)

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