Chapter 18 Performance and Discharge Flashcards
Discharge
To terminate contractual duties
Conditions precedent
A condition that must be fulfilled before a party’s performance can be required
Conditions subsequent
E.g. “the contract provides that the firm’s obligation to continue employing Mendez is discharged if Mendez fails to pass the bar exam by her second attempt”
Concurrent conditions
Conditions that must be performed simultaneously
Tender
Unconditional offer to perform by a person who is ready, willing, and able to do so
Minor defect in performance
Any omission, variance, or defect in performance that can be remedied by compensation
Substantial performance
A party who in good faith performs substantially all of the terms of a contract can enforce the contract against the other party
When performance needs to be for that specific party…
When the contract is of personal matter
When courts are divided on specific party or reasonable person standard…
When contracts require performance to a third party with superior knowledge in the subject matter
Reasonable person standard
A standard for performance that categorizes performance as satisfactory if a reasonable person would be satisfied with what was done
Material breach of contract
When performance of a contract is not at least substantial
When breach is minor…
Non-breaching party’s duty is not entirely excused: might be paused and resume after minor breach has been cured
Anticipatory repudiation
Before either party to a contract has a duty to perform, one of the parties may refuse to carry out his or her contractual obligations
Novation
When both of the parties to a contract agree to substitute a third party for one of the original parties
Settlement agreement
Two original parties form a new agreement to substitute the original one
- No 3rd party involved
Accord
A contract to perform some act to satisfy an existing contractual duty that is not yet discharged
Satisfaction
The performance of the accord agreement
Material alteration
The innocent party’s duty can be discharged when the contract is changed materially without consent
Subjective impossibility
E.g. cannot make payment because bank is closed
- It’s impossible for me to perform not for anyone to perform
Court’s response to temporary impossibilities…
Hard to predict
