Discharge of Defendant's Duty to Perform Flashcards
Discharge of Defendant’s Duty to Perform
Once the plaintiff has either performed all his required conditions or has been excused from such performance, the defendant’s duty to perform arises, unless the defendant’s duty to perform is discharged.
Merger
A merger is said to have occurred in a contractual situation when one contract supersedes or incorporates another.
Modification
A modification is a subsequent agreement entered into for consideration for purposes of modifying the prior contract. Since the Parol Evidence Rule only bars evidence related to agreements made prior to or concurrently with the written contract, the rule does not apply to modifications. Under the UCC, consideration is not required for a modification to be binding.
Mutual Recission
A mutual rescission is an agreement by the parties to an existing executory contract to consider their contract null and void. This rescission is a contract in itself and requires mutual assent and consideration. The consideration for rescission is usually found in the fact that all parties incur a legal detriment by giving up their right to sue each other.
In a case involving an executed contract or a unilateral contract, an attempted rescission by mutual agreement would be lacking in consideration. Regarding an executed contract, the party who has received full performance is not giving up any right against the other, so he or she is incurring no legal detriment. Regarding a unilateral contract, the offeror only has the power to revoke the offer and terminate all obligations if revocation of the offer is communicated to the offeree before the offeree has materially changed his or her position in reliance upon the offer.
Substitute Contract
A substitute contract is an agreement between the parties to a prior contract which takes the place of and discharges the prior contract. It differs from a novation in that no new parties are involved.
Release
A release, at common law, was a complete discharge of existing contractual obligations given by one party to the contract to the other in a written document under seal. Modernly, in those jurisdictions that do not use the formal seal, a release is generally considered valid if supported by consideration.
Accord and Satisfactiion
An accord is an agreement to compromise an existing obligation which has become the subject of a good faith dispute. Acceptance of the accord results in “satisfaction,” meaning that the original obligation has been discharged with the accepting party no longer being able to charge the performing party with a breach of contract.
Novation
novation is a new contract that is, in effect, an immediate discharge of a pre-existing contractual duty which creates a new duty in its place. It requires the replacement of one of the previously contracting parties with a new party who neither owed the previous duty nor was entitled to its performance.
Frustration of Purpose
Although performance is still possible, a party to a contract will be discharged from an obligation to perform when an unanticipated event occurs after the formation of the contract, with a result that the parties’ main purpose in making the contract has become so frustrated that the benefit to be received by one party from the other party is now totally destroyed or materially impaired.
Economic or Commercial Impracticability
Although performance is not totally impossible, a party to a contract will be discharged from an obligation to perform when an unanticipated difficulty has occurred after the formation of the contract, with the result that performance would be vastly different than that intended by the parties.
Supervening Illegality
Supervening illegality occurs when, after the formation of the contract, the purpose for which the contract was created has become illegal. In such a case, the duty to perform is discharged.
Failure of Consideration
Failure of consideration occurs when the subject matter of the consideration ceases to exist or becomes worthless even though valid consideration was present when the parties first contracted.
