Ch. 20: Performance Flashcards
Performance
Fulfillment of a contractual obligation
Tender of delivery
Seller makes available to buyer goods conforming to the contract and so notifies the buyer
Time of tender
Tender must be made at a reasonable time and kept open for a reasonable period of time.
Place of tender
If none specified, place for delivery is the seller‘s place of business or, if he has no such place, his residence.
Shipment contract
Seller is required to tender delivery of the goods to a carrier for delivery to buyer.
Destination contract
Seller is required to tender delivery of the goods at a named destination.
Perfect tender rule
Sellers tender performance must conform exactly to the contract subject to (1) agreement of the parties, (2) cure by seller, and (3) installment contract.
Agreement between the parties
The parties may contractually limit the operation of the perfect tender rule
Cure
When the time for performance under the contract is not expired or when the seller has shipped non-conforming goods in the belief that the non-conforming tender would be acceptable, a Cellarmaker or correct his nonconforming tender.
Installment contract
When the contract calls for the goods to be delivered in separate lots, the buyer may reject a non-conforming installment if it’s substantially impairs the value of that installment and cannot be cured; but if not conformity or default of one or more of the installments substantially impairs the value of the whole contract, the buyer can treat the breach as a breach of the whole contract.
Inspection
Unless otherwise agreed, the buyer has a reasonable time in which to inspect the goods before payment or acceptance to determine whether they can form.
Rejection
Buyers manifestation of unwillingness to become the owner of the goods; must be made within a reasonable time after the goods have been tendered or delivered and gives the buyer the right to (1) reject all of the goods, or (2) accept all of the goods, or (3) accept any commercial unit(s) and reject the rest.
Acceptance
Buyer’s manifestation of a willingness to become the owner of the goods.
Revocation of acceptance
Rescission of buyers acceptance of the goods if nonconformity of the goods substantially impairs their value, provided that the acceptance was (1) premised on the assumption that the non-conformity would be cured by the seller and it was not or (2) the nonconformity was an undiscovered hidden defect.
Obligation of payment
In the absence of an agreement, payment is due at the time and place the buyer is to receive the goods
Casualty to identified goods
If the contract is for goods that were identified when the contract was made and those goods are totally lost or damaged without fault of either party and before the risk of loss has passed to the buyer, the contractors avoided.
Identified goods
Goods designated as a part of a particular contract.
Failure of presupposed conditions
The seller is excused from the duty of performance on the non-occurrence of pre-supposed conditions that were a basic assumption of the contract, unless the seller has expressly assumed the risk.
Commercial impracticality
Performance that is impracticable as a result of an unforeseen supervening event is excused.
Substituted performance
When neither party is at fault in the agreed manner of delivery of goods becomes commercially impracticable, a substituted manner of performance must be tendered and excepted.
Right to adequate assurance of performance
When reasonable grounds for insecurity arise regarding either party’s performance, the other party may demand written assurance and suspend his own performance until he receives that assurance.
Right to cooperation
If one party’s required cooperation is untimely, the other parties excused from any resulting delay in her own performance.
Anticipatory repudiation
If either party clearly indicates an unwillingness or inability to perform before the performances due, the other party may wait performance for a reasonable time or resort to any remedy for breach.
