Excused Nonperformance Flashcards
Excused Nonperformance because something happened after contract was made
Other person’s improper performance, failure of a performance condition, Anticipatory Repudiation, Excuse by reason of a later contract, excuse by reason of a later unforeseen event
Other Person’s Improper Nonperformance
Damages can be recovered for any breach
ONLY A MATERIAL BREACH by one guy EXCUSES the other from performing
Whether BREACH IS MATERIAL
Performance Condition
Mutually agreed upon promise modifier: arises usually when performance is needed from a third party
Look for words such as: provided, if , and when
FAILURE TO PERFORM RELIVES OTHER PARTY FROM THEIR DUTY TO PERFORM
Promise/Duty/Covenant
Commitment to do or refrain from doing something,
IF PROMISE IS UNCONDITIONAL FAILURE TO PERFORM IS A BREACH
Express Conditions
Contract provision
STRICT COMPLIANCE WITH EXPRESS CONDITIONS IS NEEDED.
Reasonable person standard will arise except in cases involving (art or other matter that are inherently discretionary)
How can an Expressed Condition be Excused?
Estoppel - person who benefits from/protected by the condition, look for a statute giving up benefit/protection.
THIS CHANGE IN POSITION MUST OCCUR BEFORE CONDITION WAS TO OCCUR
WAIVER: Based on statements by person AFTER the event was supposed to occur
Anticipatory Repudiation
Unambiguous Statement, that party will not perform MADE PRIOR, to the time that the performance was due
EXCUSES NONREPUDIATING PARTY FROM PERFORMING AND ALLOWS TO BRING A CLAIM FOR DAMAGES
Retracting Repudiation
Can be retracted So long as there has not been a MATERIAL CHANGE IN POSITION.
performance is reinstated, BUT PERFORMANCE CAN BE DELAYED UNTIL ADEQUATE ASSURANCES ARE MADE
Inability to Perform
Contract for services, in exchange for a THING (tangible/intangible) personal property, THAT CAN NO LONGER BE PROCURED
Rescission (cancellation)
Whether performance is still remaining from each of the contracted parties (IF THE WORK IS COMPLETE YOU CAN LATER RESCIND)
Accord and Satisfaction
Substitute Performance
Accord: Agreement parties to an ALREADY EXISTING OBLIGATION agree to accept a DIFFERENT PERFORMANCE IN SATISFACTION OF THE EXISTING OBLIGATION.
Satisfaction: Completion of the Accord
IF NO SATISFACTION: Party can sue under original obligation or new obligation
Novation
Agreement between BOTH parties of the original contract to SUBSTITUTE A NEW GUY FOR THE SAME PERFORMANCE OF ONE OF THE ORIGINAL PARTIES
Liability of Novation
Novation excuses that contracted for performance of the party who is substituted or replaced
Novation v. Delegation
Novation required agreement of BOTh parties, and EXCUSES person replaced from ANY LIABILITY FOR NONPERFORMANCE.
Delegation does not require both parties and does not excuse for nonperformance
Impossibility
Contractual duties will be discharged if it has become impossible to perform them.
Duties could not have been performed by anyone (objective)
Impossibility must arise after the contract has been entered into.
Partial Impossibility, discharge of performance only to that extent.
Temporary Impossibility: suspends performance
Part Performance Prior to Impossibility: Quasi contract relief.
