Breach & Performance

Question 1

233- Performance at Once or Installments

unless otherwise indicated

Answer 1

1. If one party’s performance can be rendered at once, it is due all at once
2. If subsection 1 applies: than than if other party’s performance can be apportioned so that a comparable part can be rendered at that time- its due at that time

Question 2

234- Order of Performances

unless otherwise indicated

Answer 2

1. If all or part of performances can be rendered at the same time, they are due at same time
2. minus subsection 1- if performance of only one party takes time, than its due earlier than the other party’s performance

Question 3

235- Effect of Performance as discharge and of non-performance as breach

Answer 3

1. Full performance under contract discharges a duty

2. when performance is due, non-performance is a breach

Question 4

236- claims for damages for total or partial breach

Answer 4

1. claim for damages for total breach is one for damages based on all of injured parties remaining rights of performance
2. claim for damages for partial breach is one for damages based on only part of injured parties remaining rights of performance

Question 5

237- effect on other party’s duties of a failure to render performance

Answer 5

1. there must be no uncured material failure by other party for performance at due earlier
2. unless 240 applies- part performances as agreed equivalents

Question 6

238- effect on other party’s duties of failure to offer performance

Answer 6

if all or part performances are due at same time, each duty is conditional on whether or not the other performs or offers to perform w manifest present ability to do so

Question 7

240- part performances as agreed equivalents

Answer 7

if performances can be apportioned into equivalent pairs, 238 applies within each pair

Question 8

241- circumstances significant in determining whether failure is material

Answer 8

in determining whether failure is material, this matters:

1. extent which injured party will be deprived of reasonably expected benefit
2. extent to which injured party can be adequately compensated for what was deprived
3. extent to which party that fails to perform or to offer performance will suffer forfeiture
4. chance that party in breach will cure failure
5. extent which party in breach demonstrates good faith and fair dealing

Question 9

242- circumstances significant in determining when remaining duties discharged

Answer 9

significant in determining when discharged if 237 and 238 apply:

1. everything from 241
2. extent to which it reasonably appears to injured party that delay may prevent from making reasonable substitute arrangements
3. extent to which agreement provides for immediate performance (but failure to provide on the day indicated doesn’t discharge unless circumstances or language of agreement indicate)

Question 10

243- when breach by non-performance gives rise to total breach damages

Answer 10

1. only if it discharges injured parties remaining duties to perform, other than 240 agreed equivalent pairs
2. breach by non performance accompanied or followed by repudiation gives rise to total breach UNLESS
3. only remaining duties at time of breach are party in breach’s duty to pay money in unrelated instalments
4. in any other case- total breach only if substantially impairs value of contract to injured party at time of breach so that the right thing to do is allow him to recover full damages

Question 11

244- effect of subsequent events on duty to pay damages

Answer 11

a party’s duty to pay damages for total breach by non-performance discharged if, after breach, it looks like the injured party would have totally failed to perform

Question 12

245- effect of a breach by non-performance as excusing non-occurrence of condition

Answer 12

if party’s breach materially contributes to non-occurrence of condition of one of his duties, non-occurrence is excused

Question 13

246- effect of acceptance as excusing non-occurrence of condition

Answer 13

1. if one party accepts the others performance or retains it for unreasonable time despite knowing that a condition of their own occurrence won’t happen, they promise to perform in spite of that under section 84
   UNLESS
2. where obligor manifests assent to performance despite defects he knows or has reason to know about, obligors acceptance or retention operates as promise to perform in spite of non-occurrence of condition IF at time of acceptance or retention, removal of obligee’s performance is so attached to obligor’s property that removal would cause material loss. see 84

Question 14

247- effect of acceptance of part performance as excusing subsequent non-occurrence of condition

Answer 14

acceptance of part performance with reason to know that a condition of party’s own duty won’t happen is a promise to perform under 84 to extent other party is justified in believing that the other party will accept the performance in spite of non-occurrence

Question 15

248- what is a repudiation

Answer 15

1. a statement indicated that party will commit total breach under 243
2. voluntary affirmative act which renders party unable to perform without rendering total breach under 243

Question 16

251- when a failure to give assurance is repudiation

Answer 16

1. where reasonable things happen that indicate total breach will happen under 243, party may demand adequate assurance and may suspend performance for which he has not already received the agreed exchange until he gets the assurance
2. failure to provide adequate assurance can be treated as repudiation

Question 17

252- effects of insolvency

Answer 17

1. if one party’s insolvency reasonably indicates that breach will happen under 251, other party may suspend performance for which he hasn’t received agreed exchange until he gets performance, offer of performance, or adequate security
2. person is insolvent who has stopped paying or cannot pay debts as they become due, or according to fed bankruptcy law

Question 18

253- effect of repudiation as a breach and on other party’s duties

Answer 18

1. if party repudiates before he commits non-performance breach and before he receives all of his part of the exchange, repudiation gives rise to total breach
2. one party’s repudiation discharges other party’s remaining duties

Question 19

254- subsequent events effect on damages due from repudiation

Answer 19

1. duty to pay total breach damages discharged if it later appears other party would have totally failed to perform
2. if it appears later that repudiated duty would have been discharged by impracticability or frustration before any non-performance breach

Question 20

255- effect of a repudiation as excusing non-occurrence of condition

Answer 20

if party’s repudiation materially contributes to non-occurrence of condition of one of his duties, the non-occurrence is excused

Question 21

256- nullification of repudiation/ basis for repudiation

Answer 21

1. retraction of 250 or 251 repudiation nullifies if notification comes to injured party before he materially changes position in reliance on repudiation or indicates that he considers repudiation to be final
2. effect of other events besides repudiation 250 or 251 is nullified if injured party knows that those events stopped existing before he materially changes his position in reliance on repudiation or indicates that he considers repudiation final

Question 22

257- effect of urging performance in spite of repudiation

Answer 22

injured party urging repudiator to retract or perform has no effect on anything