excuses

Question 1

what are the five major types of excuses to performing under a K?

Answer 1

(1) non-occurrence of condition, (2) modification, waiver, estoppel, (3) unforeseen occurrence, (4) anticipatory repudiation, and (5) material breach

Question 2

define a “condition”

Answer 2

an event, not certain to occur, which must occur before PF is due (unless CN is extinguished)

Question 3

what are the three questions in the test for non-occurrence of condition?

Answer 3

(1) was there a condition? (2) did the condition occur? (3) was the condition extinguished?

Question 4

what are two ways a CN can be extinguished?

Answer 4

(1) avoidance of disproportionate forfeiture, (2) prevention

Question 5

what is the effect of extinguishing an excuse because of avoidance of disproportionate forfeiture?

Answer 5

excuses non-occurrence unless condition was a material part of K

Question 6

when is something a “disproportionate forfeiture”

Answer 6

balance extent of forfeiture vs. risk/degree of protection lost (no payment at all?)

Question 7

when does “prevention” extinguish a condition?

Answer 7

non-occurrence of CN excused if party favored by it wrongfully prevents or hinders fulfillment of CN

Question 8

how does “strict compliance” relate to fulfillment of condition precedent?

Answer 8

if condition precedent is not fulfilled, K is not enforceable

Question 9

define “modification”as it relates to excuse from PF

Answer 9

result of bilateral action of both parties

Question 10

who can retract a modification of a K?

Answer 10

can’t be retracted unilaterally because it’s a result of bilateral action of both parties

Question 11

when can modification of a K be inferred?

Answer 11

can be inferred by mutual consent to modification from circumstances and parties’ conduct

Question 12

when is a condition waived?

Answer 12

by language or by conduct, promisor states his intention to forgo benefit of a CN

Question 13

can waiver be created/retracted by one party, or does it have to be both?

Answer 13

waiver can be executed by one party, and can be retracted unilaterally

Question 14

when can a waiver be retracted?

Answer 14

can be retracted unilaterally as long as the waiver has not yet been relied upon by other party

Question 15

what’s the formal definition of a waiver?

Answer 15

intentional relinquishment of a known right

Question 16

explain “equitable estoppel”

Answer 16

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

Question 17

is equitable estoppel a unilateral or bilateral action?

Answer 17

bilateral - one party waives a CN, other party relies on that waiver

Question 18

what are the three main types of “Unforeseen Occurrence” excuses?

Answer 18

impossiblity, impracticability, and frustration of purpose

Question 19

define “impossiblity” as an excuse to PF

Answer 19

excuses a party from PF if PF becomes impossible (hall burns down)

Question 20

define “impracticability” as an excuse to PF

Answer 20

PF is physically possible but would entail a much higher cost than expected

Question 21

what are the three main kinds of “impracticability” excuses to PF?

Answer 21

(1) death/incapacity of necessary person, (2) destruction of necessary thing, (3) prohibition by law

Question 22

describe the basic premise of “frustration of purpose” excuse to PF.

Answer 22

change in circumstances makes one party’s PF virtually worthless to the other, although PF remains possible (king’s coromation)

Question 23

how do you show that “frustration of purpose” is applicable?

Answer 23

(1) purpose frustrated was principal purpose of K, (2) frustration was significant, (3) non-occurrence of frustrating event was a basic assumption of K

Question 24

what are you first expected to do when there’s an unforeseen occurrence, before claiming it as an excuse?

Answer 24

first use resaonable efforts to surmount obstacles to PF

Question 25

what are the two ways that anticipatory repudication can occur

Answer 25

by (definite) statement or by conduct

Question 26

describe how someone can cause anticipatory repudiation by definite statement

Answer 26

statement by obligor that they will breach (courier to start work in June, fired in May)

Question 27

describe how someone can cause anticipatory repudiation by conduct

Answer 27

affirmative act which renders obligor unable to perform without a breach - sell land to someone else?

Question 28

when can someone ask for adequate assurances?

Answer 28

if there are reasonable grounds to believe that the other party isn’t going to PF

Question 29

what happens if someone doesn’t provide adequate assurances when asked?

Answer 29

failure to give AA can be treated as repudiation

Question 30

how is material breach an excuse for non-PF?

Answer 30

my non-PF is excused because he already materially breached

Question 31

what’s the effect of suing for breach vs suing for material breach?

Answer 31

can sue for any kind of breach, but only material breach excuses PF

Question 32

what makes a breach material?

Answer 32

goes to the root of the K

Question 33

what’s the purpose of constructive conditions?

Answer 33

fill the gaps in a K where parties neglect to state order of PF of promises

Question 34

how is substantial PF related to constructive conditions?

Answer 34

a party who is to PF work over an extended time must substantially PF before becoming entitled to payment

Question 35

when is a K divisible?

Answer 35

whole PF is divided into sets of partial PF’s by each party

Question 36

how is the concept of divisible K’s a mitigating doctrine?

Answer 36

failure to PF one part of K does not bar recovery for PF of another part

Question 37

descibe the UCC Perfect Tender rule

Answer 37

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

Question 38

what’s the UCC equivalent of a material breach rule?

Answer 38

perfect tender rule

Question 39

what are the two available options in Election of Remedies?

Answer 39

(1) continue K, recover damages solely for breach, or (2) terminate K and recover liquidated damages

Question 40

what’s the consequence in election of remedies of choosing to cotinue K?

Answer 40

can’t later elect to terminate based on that breach, but retains right to sue for damages

Question 41

how can someone indicate in the election of remedies that they choose to continue accepting PF?

Answer 41

by continuing to perform K or accept PF of breacher