Excuses

Question 1

under common law, can a party be excused from performance if the other commits a minor breach of the contract?

Answer 1

No, only a material breach of the contract excuses performance by the other

Question 2

One party has substantially for performed the contract, But has also breached the agreement. Can the counterparty be excused from performance?

Answer 2

No, substantial performance means that there cannot be a material breach

Question 3

If the person receiving services is not happy with the quality of the services because of a major breach, will they be excused from carrying out their part of the contract/paying?

Answer 3

Yes they are excused from paying under the contract and entitled to money damages

Question 4

If one party breaches of contract that involves divisible services, Can they recover for the work carried out as part of the substantial performance?

Answer 4

Yes divisible contract = recovery for the part of performance

Question 5

Are there are different rules for anticipatory repudiation under the UCC and common law. And if so what are they?

Answer 5

No, the same rule

Question 6

What are the requirements for anticipatory repudiation?

Answer 6

• An An ambiguous statement that the party is not going to do what they are meant to under the contract by the time stipulated

– if counterparty anticipates a bridge they are excused from their own performance

• Nonbreaching party can collect damages immediately

Question 7

If one party anticipates repudiation but they have already finished their own performance under the contract can they recover damages immediately?

Answer 7

Where the nonbreaching party has already finish performance they can only recover on the contract date

Question 8

Can anticipatory repudiation be withdrawn?

Answer 8

Yes, provided that the other party has not made a material change in their position based on the anticipatory repudiation

Question 9

If a party expresses doubt about their ability to perform a contract within the specified times/conditions, could that amount to anticipator your appreciation?

Answer 9

No, made out is not sufficient. The statement must be unequivocal

Question 10

What are the rules for a prospective failure of a condition?

Answer 10

• One party makes a statement or indicates conduct that they will not perform their duties

– which gives rise to reasonable grounds for insecurity that they will not perform

– thew anticipating party can then demand, in writing, adequate assurance, and

– suspend their performance until they receive such assurance (provided it is commercially reasonable to do so)

– note however that the statement can be retracted and obligations imposed on the parties again (assuming no reliance on the change of position)

Question 11

Does non-occurrence of an express contract condition amount to a breach?

Answer 11

No it is an excuse for nonperformance of the contract, not a breach

Question 12

What is the standard for complying with an express contract condition?

Answer 12

The condition must be strictly complied with (as opposed to materially complied with)

Question 13

Can the party who insisted on the contract condition waive it?

Answer 13

Yes, But they may still be entitled to damages for defective performance

Question 14

Does waiver of a condition require consideration in order to be valid?

Answer 14

No consideration is required

Question 15

There is a waiver of a condition need to be in writing?

Answer 15

No it can be made orally or by conduct that the party will not insist on that condition being met

Question 16

What does recision of a contract mean?

Answer 16

Cancelling it

Question 17

Country parties agreed to resend the contract even before work is complete?

Answer 17

Yes

Question 18

Is a agreement to resend a binding contract? Or does it require consideration?

Answer 18

No consideration is required because the giving up of each parties right acts as valid consideration

Question 19

Will a mutual decision to rescind a contract discharge a third party beneficiary’s rights?

Answer 19

No, if the third-party beneficiaries rights have vested the recision will not necessarily prevent them from enforcing.

Question 20

Where a contract states that a mutual decision must be made in writing, Is a subsequent oral recession invalid?

Answer 20

No

Question 21

Where are unilateral contract has been fully performed, Can the contract be rescinded?

Answer 21

Only if:

1. Only if the recision is supported by new consideration by the non-performing party
2. There is promissory estoppel
3. OR Offeree now intends to make a gift

Question 22

What are the requirements for accord and satisfaction?

Answer 22

1. A bona fide dispute as to an existing contract
2. An accord for a new agreement
3. Which is supported by consideration
4. This suspends the right to enforce the earlier contract
5. Satisfaction by performance of new term, which then discharges the earlier agreement

Question 23

If you see a fact pattern with an accord but no satisfaction, under which contract can non breaching party recover?

Answer 23

Under either the old or the new contract but not under both

Question 24

How is novation different from delegation?

Answer 24

Novation requires both original parties to agree to the substitute

Question 25

Where Party A, Party B and Party C agree to a novation of A’s rights to C, who will be liable under the contract?

Answer 25

C and B

Question 26

A seller of land, services or good will try to plead which post-contractual occurrence defence when it comes to their ability to perform?

Answer 26

Typically impossibility or impracticability

Question 27

A buyer will usually raise which post-contracts occurrence defence so as to not perform?

Answer 27

Frustration. Because paying money is never impractical

Question 28

For service contracts, will destruction or damage to the subject matter amount to a defence of impossibility?

Answer 28

No, unless the D is completely prevented from performance

Question 29

Under the UCC (sale of goods) if the subject matter is destroyed or damaged, how do you determine the risk of loss?

Answer 29

• Agreement
• Breach
• Common cattier
• Delivery (receipt rule)

Question 30

What is the test for impracticability?

Answer 30

The performing party encounters extreme or unreasonable difficulty or expense, and

It’s non-occurrence was a basic assumption of the parties

Question 31

What is the test for impossibility?

Answer 31

A contract may be discharged where it becomes impossible for one party to perform (e.g. incapacity/death)

Question 32

If a contract becomes legally impossible to perform what is the result?

Answer 32

Illegality will be an excuse not to perform

Question 33

What are the requirements for frustration of purpose?

Answer 33

1. There is some supervening Atrovent leading to the frustration
2. At the time of entering into the contract the parties did not reasonably foresee this occurring
3. The purpose of the contract has been completely/almost completely destroyed as a result
4. The purpose of the contract was realised by both parties at the time of making it

Question 34

For a service contract will death of one of the parties discharge it?

Answer 34

No and the person can recover from the estate.

However, for special services contract death would excuse the performance