excuses Flashcards
what are the five major types of excuses to performing under a K?
(1) non-occurrence of condition, (2) modification, waiver, estoppel, (3) unforeseen occurrence, (4) anticipatory repudiation, and (5) material breach
define a “condition”
an event, not certain to occur, which must occur before PF is due (unless CN is extinguished)
what are the three questions in the test for non-occurrence of condition?
(1) was there a condition? (2) did the condition occur? (3) was the condition extinguished?
what are two ways a CN can be extinguished?
(1) avoidance of disproportionate forfeiture, (2) prevention
what is the effect of extinguishing an excuse because of avoidance of disproportionate forfeiture?
excuses non-occurrence unless condition was a material part of K
when is something a “disproportionate forfeiture”
balance extent of forfeiture vs. risk/degree of protection lost (no payment at all?)
when does “prevention” extinguish a condition?
non-occurrence of CN excused if party favored by it wrongfully prevents or hinders fulfillment of CN
how does “strict compliance” relate to fulfillment of condition precedent?
if condition precedent is not fulfilled, K is not enforceable
define “modification”as it relates to excuse from PF
result of bilateral action of both parties
who can retract a modification of a K?
can’t be retracted unilaterally because it’s a result of bilateral action of both parties
when can modification of a K be inferred?
can be inferred by mutual consent to modification from circumstances and parties’ conduct
when is a condition waived?
by language or by conduct, promisor states his intention to forgo benefit of a CN
can waiver be created/retracted by one party, or does it have to be both?
waiver can be executed by one party, and can be retracted unilaterally
when can a waiver be retracted?
can be retracted unilaterally as long as the waiver has not yet been relied upon by other party
what’s the formal definition of a waiver?
intentional relinquishment of a known right
explain “equitable estoppel”
if one stops insisting on a CN, and other party relies, then party benefitting from CN is estopped from arguing that CN was not satisfied
is equitable estoppel a unilateral or bilateral action?
bilateral - one party waives a CN, other party relies on that waiver
what are the three main types of “Unforeseen Occurrence” excuses?
impossiblity, impracticability, and frustration of purpose
define “impossiblity” as an excuse to PF
excuses a party from PF if PF becomes impossible (hall burns down)
define “impracticability” as an excuse to PF
PF is physically possible but would entail a much higher cost than expected
what are the three main kinds of “impracticability” excuses to PF?
(1) death/incapacity of necessary person, (2) destruction of necessary thing, (3) prohibition by law
describe the basic premise of “frustration of purpose” excuse to PF.
change in circumstances makes one party’s PF virtually worthless to the other, although PF remains possible (king’s coromation)
how do you show that “frustration of purpose” is applicable?
(1) purpose frustrated was principal purpose of K, (2) frustration was significant, (3) non-occurrence of frustrating event was a basic assumption of K
what are you first expected to do when there’s an unforeseen occurrence, before claiming it as an excuse?
first use resaonable efforts to surmount obstacles to PF
what are the two ways that anticipatory repudication can occur
by (definite) statement or by conduct
describe how someone can cause anticipatory repudiation by definite statement
statement by obligor that they will breach (courier to start work in June, fired in May)
describe how someone can cause anticipatory repudiation by conduct
affirmative act which renders obligor unable to perform without a breach - sell land to someone else?
when can someone ask for adequate assurances?
if there are reasonable grounds to believe that the other party isn’t going to PF
what happens if someone doesn’t provide adequate assurances when asked?
failure to give AA can be treated as repudiation
how is material breach an excuse for non-PF?
my non-PF is excused because he already materially breached
what’s the effect of suing for breach vs suing for material breach?
can sue for any kind of breach, but only material breach excuses PF
what makes a breach material?
goes to the root of the K
what’s the purpose of constructive conditions?
fill the gaps in a K where parties neglect to state order of PF of promises
how is substantial PF related to constructive conditions?
a party who is to PF work over an extended time must substantially PF before becoming entitled to payment
when is a K divisible?
whole PF is divided into sets of partial PF’s by each party
how is the concept of divisible K’s a mitigating doctrine?
failure to PF one part of K does not bar recovery for PF of another part
descibe the UCC Perfect Tender rule
if any part of good/delivery fails in any respect to conform to K, then buyer may reject everything, accept everything, or accept some and reject the rest
what’s the UCC equivalent of a material breach rule?
perfect tender rule
what are the two available options in Election of Remedies?
(1) continue K, recover damages solely for breach, or (2) terminate K and recover liquidated damages
what’s the consequence in election of remedies of choosing to cotinue K?
can’t later elect to terminate based on that breach, but retains right to sue for damages
how can someone indicate in the election of remedies that they choose to continue accepting PF?
by continuing to perform K or accept PF of breacher
