EXCUSES

Question 1

Express Conditions

Answer 1

1. Conditions: Not Having to Perform Because Something That the Contract Expressly Said Had to Occur Didn’t
   A. Occurrence of Express Conditions and Strict Compliance
   ○ Rest. 224. Condition Defined. A condition is an event, not certain to occur, which must occur, unless its nonoccurence is excused, before performance is due.
   • Provided
   ○ Other examples:
   □ “on the condition”
   □ “unless and until”
   □ “only if”
   • Rest. 229. Excuse of a Condition to Avoid Forfeiture. To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the exchange.
   • It is a principle of fundamental justice that if a promisor is himself the cause of the failure of the performance, . . . he cannot take advantage of the failure. Indeed, ‘prevention can negate a requirement to satisfy a condition precedent and non-occurrence is normally excused when fairly attributable to the promisor’s own conduct.

Question 2

Impossibility

Answer 2

In the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor

Question 3

Impracticability

Answer 3

a party’s performance is made impracticable . . . by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged (unless the parties contract otherwise)

Question 4

Frustration of Purpose

Answer 4

Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary

Question 5

Anticipatory Repudiation

Answer 5

• Rest. 250. A repudiation is
a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or
b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
• Rest. 253(2). Where performances are to be exchanged under an exchange of promises, one party’s repudiation of a duty to render performance discharges the other party’s remaining duties to render performance.
• See also UCC 2-610 and comments (provides essentially identical rules)
• Rest. 251 (p. 744)
1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.
2) The obligee may treat as a repudiation the obligor’s failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.
• (also UCC 2-609: demand to be in writing, and 30 day deadline to respond)

Question 6

Material Breach

Answer 6

○ substantial performance = satisfaction of constructive condition = other guy’s performance is due
○ material breach = failure of constructive condition = other guy’s performance is not due (i.e., it’s excused)
• Rest. 241. Circumstances Significant in Determining Whether a Failure is Material. In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking into account all the circumstances including any reasonable assurances;
e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing

Question 7

Divisible Contracts

Answer 7

• Rest. 240. If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party’s performance of his part of such a pair has the same effect on the other’s duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.

Question 8

Perfect Tender Rule

Answer 8

• UCC 2-601. Buyer’s Rights on Improper Delivery. Subject to (rules on installment contracts). . . , if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may:

        a) reject the whole; or
	b) accept the whole; or 
	c) accept any commercial unit or units and reject the rest.