After Acquired Evidence

Question 1

Can a party use after-acquired evidence?

Answer 1

yes, a party can use after-acquired evidence to avoid liability even though they terminated a contract without justification prior to receiving good evidence.

Question 2

RS 241- Circumstances Significant in Determining Whether a Failure is Material

Answer 2

In determining whether a failure to render or to offer performance is material, the following circumstances are significant:

(a) the extent to which the injured party will be deprived of the benefit which he reasonable expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived.
(c) the extent to which the party failing to perform to to offer to perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer too perform will cure his failure, taking account of all the circumstances including any assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

Question 3

What does the irrelevance of good faith mean as it pertains to anticipatory repudiation?

Answer 3

Good faith will not prevent a statement from being a repudiation. So if a party thinks a contract has been breached, then they better be dang sure because if they repudiate and there was not a breach then they will be liable whether they acted in good faith or not.

Question 4

Does a failure to pay for lack of performance justify a parties repudiation?

Answer 4

No. A failure to pay for lack of substantial performance does not justify the other parties’ repudiation.

Question 5

Define: Partial Breach

Answer 5

Party can continue to perform and sue for damages from the partial breach of the other party.

Question 6

Define: Total Breach

Answer 6

Party must stop work and sue for expectation damages.

Question 7

Does withholding a progress payment imply a material breach?

Answer 7

A withheld payment constitutes a material breach when the parties contracted to have progress payments and specified that to withhold a payment is a material breach.