Discharge Flashcards
Discharge of Duty
If cond. are excused or satisfied the parties have an absolute duty to perform
- Unless that duty is discharged
- If some supervening event or change in circ. arises after the formation of the K, the duty to perf. might be discharged
When will the doctine of Impracticability excuse performance?
The defense of impracticability is avail. if:
- Perf. becomes illegal after the K is made,
- Specific subj matter of the K is destroyed,
- Perf. party to the K dies or becomes incapacitated (pers. services K), OR
- Performance become otherwise impracticable
What are the elements of Impracticability?
For the defense to be available, the following cond. must be met:
- An unforeseen event occured
- The nonoccurrence of the event was a basic assumption on which the contract was made AND
- The party seeking discharge is not at fault
Impracticability & K to perform services
If the K can be delegated, it’s not discharged by the death or incapacity of the party who was to perf. the services
In what situations has impracticability typically been found?
- Unforeseen natural disasters
- wars
- trade & military embargos
- Strikes
- Local crop failures (unforeseen shutdown of major sources of supply)
Impracticability & Assumption of the Risk
If a party assumes the risk of an event happening that makes perf. impracticable
- defense of impracticability won’t apply
Partial Impracticability
When impracticability doesn’t prevent seller from delivering some of the goods
- They must be apportioned amoung all the buyers w/ whom the seller has contracted
- Buyer can refuse to accept and can cancel the K
Impracticability & Failure of a particular source of Supply
If K specifically identifies a source and the source of supply fails
- Performance is discharged even if other sources are available
Impracticability & Failure of Agreed on Method of Transportation
If the agreed on delivery facility or method of transportation or payment becomes impracticable or unavailable
- by no fault of either party
- Any commercially reas. delivery method may be tendered & must be accepted
When will the doctrine of frustration of purpose excuse performance?
When unexpected events arise that destroy one party’s purp. in entering into the K, even if perf. is not rendered impossible
- The unexpected event doesn’t need to be foreseeable
- but must be so severe it’s not w/in assumed risks inherent under the K
- And can’t be the frustrated party’s fault
When will rescission excuse performance?
Non-defaullting party can rescind
- grounds for rescission must have been present when K formed (Mutual mistake, fraud, misrep., Unilateral mistake - if the other party knew or should have known of the mistake)
Rescission & Third Party Beneficiaries
Contract is not discharged by mutual rescission if the rights of the 3d party beneficiary have already vested
When will release excuse performance? - Common Law
A writing that manifests intent to discharge another party from an existing duty
- Release must be supported by consideration to discharge the duty
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What is the effect of destruction of identified goods b/f ROL passes to buyer?
If by no fault of either party
- K is avoided
- Both parties are discharged
- Neither party is in breach
When will damaged goods excuse performance?
If goods Damaged but not destroyed
- The contract is avoided
- Unless buyer chooses to take the goods at a reduced price w/out any other claim against the seller
