Excuse of Nonperformance of K b/c something occurred after it was formed

Question 1

P contracts to paint O’s house on Saturday for $1000. P does not paint. Does O have to pay?

Answer 1

No. Excuse of performance because of the other guy’s nonperformance.

Question 2

What is anticipatory repudiation?

Answer 2

An unambiguous statement or conduct (i) that the repudiating party will not perform (ii) made prior to the time that performance was due.

Question 3

Does anticipatory repudiation excuse the other from performing?

Answer 3

Yes.

Question 4

P contracts to paint O’s house with payment to be made on July 13. On March
10, before P has finished painting, O tells P that she is doing a great job but that
O is not going to pay. Is P excused from continuing to perform?

Answer 4

Yes. Unambiguous statement that repudiating party will not pay and it was made prior to July 13.

Question 5

When can you recover for anticipatory repudiation?

Answer 5

Generally immediately can make claim for damages for breach, unless the claimant has already finished her performance.

Question 6

How can you retract anticipatory repudiation?

Answer 6

It can be withdrawn (retracted) so long as there has not been a material change in position by the other party. If the repudiation is timely retracted, the duty to perform is reimposed but performance can be delayed until adequate assurance is provided.

Question 7

What if performance by another is uncertain?

Answer 7

Typically in sale of goods contracts. If the party gives reasonable grounds for insecurity it can make a written demand for adequate assurance and it can suspend performance if it is commercially reasonable until such assurance is made.

Question 8

Just recall article 2 perfect tender rule.

Answer 8

Applies to sale of goods only.

Question 9

What is the material breach rule?

Answer 9

It is common law. Damages can be recovered for any breach. A material breach by one guy excuses the other from performing.

Question 10

IS a breach material if there was a substantial performance?

Answer 10

no

Question 11

If the breach is material, is the performance not substantial?

Answer 11

Yes.

Question 12

O hires P to paint his house white for $1,000. P, a big fan of the group Gogol
Bordello, http://www.youtube.com/watch?v=p_81l4DXlwM paints the house
purple. Did P materially breach? Is O excused?

Answer 12

Yes, material breach. O is excused. O can recover

Question 13

When is a breach material in quantity of performance cases?

Answer 13

Must be substantial.

Question 14

P contracts to paint ten identical apartments for O for $10,000. P breaches after
painting two apartments. Was P’s breach a material breach? Is O obligated to pay?

Answer 14

Material Breach, O not obligated to pay under contract law. May have claim under quasi-contract.

Question 15

What is the divisible contract corollary?

Answer 15

If a contract is divisible, i.e. paint 10 houses $100 per house, there can be a contract law recovery for substantial performance of a divisible part even though there has been a material breach of the entire contract.

Question 16

What is an express condition and how can they be identified?

Answer 16

Language in contract, limits obligations created by other contract language, triggering words (if, only if, provided that, so long as, subject to, etc.)

Question 17

S and B enter into an agreement that states that B will
buy and S will sell S’s house for $100,000 “on the condition that a mortgage at no
more than 6% can be obtained.” Is there a contract?

Answer 17

Yes, they entered into an agreement to the $100,000 on the condition that a mortgage at no more than 6% can be obtained. If B cannot get a mortgage under that rate he is excused.

Question 18

What is the standard for determining whether an express condition has occurred? I.e. been satisfied.

Answer 18

Generally strict compliance is required for satisfaction.

Question 19

B contracts to buy a diamond pupik ring from S. The contract states, “This sale is
subject to the ring’s being appraised at $20,000.” If the ring is appraised at
$19,500, is B excused from any contract obligation to buy the ring?

Answer 19

Yes, no strict compliance.

Question 20

B contracts to build O’s house. The contract states, “O’s payment for B’s work is
conditioned on B’s using only copper Reading pipe.” B instead uses comparable
copper Cohoe pipe. Is O excused from any contract law obligation to pay B?

Answer 20

Yes, the condition was express for Reading pipe not Cohoe.

Question 21

What is the exception to the general rule that strict compliance is required to satisfy an express condition?

Answer 21

Condition of personal satisfaction of one of the parties–honest and good faith dissatisfaction. If there is language about personal satisfaction, strict compliance need not be met, courts simply look to whether a reasonable person would be satisfied.

Question 22

How can an express condition be eliminated so that its nonoccurence does not affect performance obligations?

Answer 22

Waiver: identify the person who beneifts from or is protected by the express condition, look for a statement by that person giving up the benefits.

Prevention

Question 23

What is the difference between conditions precedent and conditions subsequent?

Answer 23

Almost all contract provisions are conditions precedent. Conditions that excuse performance until and unless they occur.
Condition subsequents occur subsequent to the start of performance and excuse performance when they occur.

Question 24

Do condition subsequents create new performance obligations?

Answer 24

No they, like conditions precedent, limit performance obligations otherwise created.

Question 25

Spike Lee contracts to see you his New York Knicks courtside seats for $10 a
game so long as the Knicks are not in first place. The Knicks are now in second
place. Mr. Lee wants to stop selling you his tickets. Is Mr. Lee excused from
performing?

Answer 25

Strict compliance—condition was first place, so he is not excused.

Question 26

What is a rescission?

Answer 26

A later deal to excuse performance of the first agreement.

Question 27

contracts to paint O’s house for $1,000, with payment to be made when the
work is completed. P begins work. Before P completes the work, P and O agree
to rescind the contract. Is the rescission valid?

Answer 27

Yes, no one can recover, everyone is excused.

Question 28

Can rescission occur after performance?

Answer 28

No.

Question 29

On the bar exam what will accord questions look like?

Answer 29

They will havean agreement by the parties to an already existing obligation to accept a different performance in satisfaction of the existing obligation.

Question 30

What is the effect of accord and satisfaction?

Answer 30

if the new agreement (the accord) is performed (satisfaction), then performance of the original obligation is excused.

Question 31

What if an accord is not performed?

Answer 31

The other party can recover either on the original obligation or the accord.

Question 32

What is a modification?

Answer 32

An agreement by parties to an existing obligation to accept a different agreement in satisfaction of the existing obligation.

Question 33

What is a novation?

Answer 33

An agreement between both parties to an existing contract to the substitution of a new party, i.e. same performance different party.

Question 34

Who is liable after a novation?

Answer 34

Novation excuses the contracted for performance of the party who is substituted for or replaced.

Question 35

How is delegation different than novation?

Answer 35

Novation requires the agreement of BOTH parties to the original contract, and excuses the person replaced from any liability for nonperformance. Delegation does not require any agreement by the original parties.

Question 36

What is the result of damage or destruction to the subject matter of a contract at common law?

Answer 36

If something no longer exists you can be excused from completing the contract. However, if you are contracted to complete something that is then destroyed, you are still required to complete the contract.

Question 37

B contracts to build a house for O for $100,000. After B begins work, the house
burns down. Is B excused from performing on this contract so that B is now free
to take another construction job?

Answer 37

No. Can still construct the house.

Question 38

P contracts to paint O’s house for $1,000. After P begins painting, the house
burns down. Is P excused from performing on this contract so that P is now free
to take another painting job?

Answer 38

Yes house no longer exists.

Question 39

What happens to a person’s obligations after contracting, if he then dies?

Answer 39

Generally death does not make a person’s contract obligations disappear. Except if special person.

Question 40

What is the exception to death of a contracting party?

Answer 40

If he is a special person, such as an actor or musician he is excused.

Question 41

Owen Wilson contracts with HBO to star in the made for television movie: “Law
School Legend – The David Epstein Story.” Before filming starts, Wilson dies.
HBO sues Wilson’s estate for breach of contract is Owen Wilson excused?

Answer 41

Yes, his nonperformance is excused.

Question 42

What if later law makes performance of contract illegal?

Answer 42

Excuse by impossibility.

Question 43

Cody contracts with Geoff for some homosexual sodomy. Five days after the contract, homosexual sodomy is made illegal. Are cody and geoff excused from performance?

Answer 43

Much to his chagrin, Cody and Geoff are excused from performance through impossibility. (Although they will likely continue their illegal activity, they think it makes it “hotter”)

Question 44

What happens if a later law makes a mutually understood purpose of a contract illegal?

Answer 44

Excuse by frustration of purpose.