Excuses and Repudiation Flashcards
Impossibility
Literally cannot be performed anymore
Impracticability
It can only be performed with great difficulty
Does death end contractual obligation?
Normally NO
Unless there is something special about the person that it makes no sense to continue without them (ex: performance by Mick Jagger)
Frustration of Purpose
Performance can still occur, but something has happened to undermine the entire reason for the creation of the contract
VERY RARE! event must be extreme and NOT previously allocated to one of the parties
Can parties just agree to walk away from a contract?
Yes, so long as there is still performance remaining on both sides (otherwise there is no consideration for this modification)
Accord
Agreeing that performance for a contract will instead be satisfied by the completion of a different performance
Satisfaction
Excusing of the initial performance obligation (when an accord was made)
what happens if an accord is not performed?
other side can sue EITHER for the accord or the original obligation
Novation
When BOTH parties agree a substitute person will take over the contractual obligations. A valid novation EXCUSES the original party from obligation.
(compare to a delegation, when one party decides to sub someone in)
Anticipatory Repudiation
When a party tells the other side they don’t intend to perform on a contract
Can a party act on an anticipatory repudiation?
Yes, if:
- Repudiation is clear and unequivocal (see PA distinction)
- your performance isn’t yet complete (if it is, you have to wait and see if they actually breach)
Can someone retract a repudiation?
Yes, if:
- Other side hasn’t started a lawsuit for breach
- Other side hasn’t acted in reliance on the repudiation
UCC on anticipatory repudiation
Have to test the waters FIRST (?)
Reasonable grounds for insecurity about the other side’s performance allows you to demand adequate assurance of performance. If they then don’t respond within a reasonable time, then you can treat it as repudiation
