Chapter 18 Preformance And Discharge In Traditional And E Contracts Flashcards
A condition that must be fulfilled before a party’s performance can be required is called A
Condition precedent
When a condition operates to terminate a party’s absolute promise to preform
Condition subsequent
If the condition occurs the party’s duty to preform is discharged
Condition subsequent.
In general condition —— are common and condition —- are rare
Precedents
Subsequents
The restatement of contracts does not use the terms condition subsequent and condition precedent, rather it
Refers to both as conditions
When each party’s performance is conditions on the other party’s performance or tender of performance
These conditions exist when the contract calls for party’s to preform their respective duties simultaneously
Concurrent conditions
Express conditions are provided by the parties agreement
No particular words are necessary, but are normally prefaced with the words
If, provided, after, when
Implied conditions are understood to be part of a contract but are not found in express language. Courts find implied terms….
From the purpose of the contract, or the intent of the parties. Conditions are often implied when they are nesisary for performance of the contract
An unconditional offer to preform by a person who is ready willing and able to do so
Tender
Once —–•——–|
Performance has been tendered
The tender
When a party performs exactly as agreed they have performed “ perfectly” it is said to be
Complete
Complete performance
If party’s to a contract did not expressly make the specifications a condition, however, and the builder fails to meet the specifications
Performance is
Not complete
doctrine of 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 under the doctrine of…
Substantial performance
Basic requirements for substantial performance
- Party must have performed in good faith
- The performance must not vary greatly from performance promised in the contract.
- Performance must creat substantially the same benefits as those promised in the contract
Effect of substantial performance on duty to preform
If the performance is substantial the other party’s duty to perform….
Remains absolute
Except that they can sue for damages due to minor deviations
Measure of damages is
The cost to bring the contract into compliance with its terms
If* that cost is reasonable under the circumstances
If the cost of bringing a contract to its terms is unreasonable then the measure of damages is —-
The difference in value between the performance that was rendered and the performance that would have been rendered if the contract had been performed completely
When the subject matter is personal, the obligation is conditional, and performance must—-
Actually satisfy the party specified in the contract.
Portraits
Works of art
Tailoring
Most other contracts ( with the exeption of personal subject matter) need to be preformed only to the satisfaction of a reasonable person
Unless*—-
They expressly state otherwise
The non-performance of a contractual duty is
Breach of contract
When there is ——— the no breaching party is excused from the performance of contractual duties
Material breach
If the breach is minor, not material, the nonbreaching party’s duty to preform is
Somtimes* suspended until the breach has been remedied
Any breach entitles the Bon breaching party to ——-. But only a ——- discharges the nonbreaching party from the contract
Sue for damages
Material breach
Anticipatory repudiation
One party refuses to Cary out his or her contractual obligations before either party has a duty to preform
