Breach Flashcards
Non-Performance of a duty that is due under a contract
Non-Performance is not justified
Breach occurs when one party’s duty to do something has arisen (you painted my living room) but the party with the duty did not do what they were obligated to do (I didn’t pay you).
Some duties only become due after a condition is met.
Breach
An event not certain to occur, but must occur, unless excused, before performance is due.
Condition
When the parties have not expressed an intent that performance is dependent upon the occurrence or nonoccurrence of an event not certain to occur but the facts (e.g., the course of performance) lead the court to decide that the parties have agreed to a condition.
Implied in-fact condition
When the parties have not expressed nor do the actions of the parties demonstrate an intent that the performance is dependent upon a condition but the court holds that such a condition is part of the contract as a matter of law.
Implied in-law condition
__________ serve an important function because they allocate the risk between the parties that one of the parties will not perform.
Conditions
A _________ _________ is an act or event, other than a lapse of time, which must exist or occur before a duty to perform a promise arises.
condition precedent
A _________ __________ arises when the parties are to exchange performances at the same time.
condition concurrent
A _________ __________ is any event the existence of which, by agreement of the parties, discharges a duty of performance that has arisen.
condition subsequent
When the parties have expressed an intent that performance is dependent upon the occurrence or nonoccurrence of a condition.
Express condition
A _______ is a contractual undertaking, breach of which leads to liability for damages or equitable relief.
promise
A _______, is a fact, the occurrence or nonoccurrence of which determines when and if a party must perform.
condition
To the extent that the non-occurrence of a condition would cause __________ _________, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange
disproportionate forfeiture
If the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a _______ part of the agreed exchange
material
A _______, as distinguished from a forfeiture, therefore, involves the enforcement of an obligation to pay an amount fixed by law or agreement of the parties as a punishment for the failure to fulfill some primary obligation.
penalty
“The owner is entitled to the money which will permit him to complete,
unless the cost of completion is ________ & _______ out of proportion to the good to be attained.
grossly and unfairly
A _______ _______ is a non-performance of duty that is due that does is not a material breach. (It is also one that is not a total breach, but if it isn’t material, it can’t be total.)
partial breach
_______ _______ Must continue to perform under the contract
Partial
_______ _______ Duty to perform may be suspended until breaching party cures breach.
Material
______ ______ Relieves/discharges from duties under contract.
Total
How much will the IP be deprived of benefit of what IP reasonably expected to get?
How well can IP adequately compensated for what IP did not get?
How much will BP lose if IP is excused from performance?
How likely is it that BP will cure the breach (perform)?
To what extent did BP act in good/bad faith?
material
Doctrine of _________ ________ requires a clear (definite and unequivocal) manifestation of intent not to perform the contract on the date of performance.
anticipatory repudiation
a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or
(b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
repudiation
The effect of a statement as constituting a repudiation under § 250 or the basis for a repudiation under § 251 is ________ by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.
nullified
When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may
(a) for a commercially reasonable time await performance by the repudiating party; or
(b) resort to any remedy for breach, even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; and
(c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller’s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods.
Anticipatory Repudiation
UCC
Until the repudiating party’s next performance is due he can retract his repudiation unless the aggrieved party has since the repudiation cancelled or materially changed his position or otherwise indicated that he considers the repudiation final.
Retraction of Anticipatory Repudiation.
UCC
Retraction may be by any method which clearly indicates to the aggrieved party that the repudiating party intends to perform, but must include any assurance justifiably demanded under the provisions of this Article
Retraction of Anticipatory Repudiation.
UCC
Retraction reinstates the repudiating party’s rights under the contract with due excuse and allowance to the aggrieved party for any delay occasioned by the repudiation.
Retraction of Anticipatory Repudiation.
UCC
Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.
Right of Assurance
The obligee may treat as a repudiation the obligor’s failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.
Right of Assurance
