Justification for Nonperformance

Question 1

What are the 7 justifications for non-performance?

ACDEMMM

Answer 1

Anticipatory Repudiation
Changed circumstances
Divisibility 
Express Conditions
Material breach
Mistake
Modification

Question 2

Define mistake

Answer 2

A mistake is a belief that was not in accord with the facts at the time the contract was entered into.

Question 3

A poor prediction of future events is not a ____

Answer 3

Mistake

Question 4

What are the two types of mistake?

Answer 4

Mutual

Unilateral

Question 5

Define mutual mistake

Answer 5

Both parties suffer from the mistake

Question 6

What are the 3 questions in the mutual mistake test?

BA/MA/AR

Answer 6

1. Does the mistake go to a basic assumption on which the K was made?
2. Does the mistake materially affect the partie’s performance?
3. Did the party seeking relief from the K assume the risk of the mistake?

Question 7

Define unilateral mistake

Answer 7

Only one party suffers from the mistake

Question 8

What is a good counterargument for a unilateral mistake?

Answer 8

If i knew about it, why didnt you?

Question 9

What are the 5 questions in a unilateral mistake test?

Answer 9

1. Does the mistake go to a basic assumption on which the contract was made?
2. Does the mistake materially affect the parties’ performance?
3. Did the party seeking relief from the K assume the risk of the mistake?
4. Is Enforcement of the contract oppressive or unconscionable ?
5. Did the other party know or have reason to know of the mistake?

Question 10

What are the 3 types of changed circumstances?

Answer 10

Impossibility
Impracticablitliy
Frustration of Purpose

Question 11

Under the Doctine of Impossibility, a party will not be held in breach if they can show these 3 things

Answer 11

1. Death or incapacity of a party necessary for the performance of the K,
   2) Supervening Illegality,
   3) Destruction of a thing necessary for performance of the K.

Question 12

Define anticipatory repudiation

Answer 12

Anticipatory repudiation is present where a party says or does something to repudiate the contract before the performance is due.

Question 13

Upon repudiation what can an injured party do?

Answer 13

Upon repudiation, the injured party can: (1) suspend performance, (2) wait until the time set for performance, or (3) withhold performance and sue immediately. If the injured party has completely performed under the contract at the time of repudiation, the injured party must wait.

Question 14

Define express condition

Answer 14

An express condtion is a condition that is not certain to occur, but that must occur (unless excused), before the duty to perform arises. Express conditions must be agreed to and strictly complied with

Question 15

What are the two types of express agreements?

Answer 15

Express condition precedent

Express condition susbsequent

Question 16

How are express conditions created?

Answer 16

Express condition are created by lanaguage.

“on condition that” “if” “provided that” “unless”

Question 17

What are the 5ways nonoccurence of event can be excused by?

Answer 17

1. breach by prevention
2. Forfeiture
3. Impracticability
4. Supervening illegality
5. Waiver

Question 18

If the event is excused, the party is entitled to ____

Answer 18

Performance

Question 19

Define divisibility

Answer 19

A K is divisible if performances under that contract can be divided into corresponding pairs AND each performance is equivalent to the other.

Question 20

What are the 2 questions for the analysis on whether or not a K is divisible?

Answer 20

Can performances be divided into corresponding pairs?

Are those performances the equivalent of each other?

Question 21

What happens if a K is divisible?

4p’s and a C

Answer 21

If K is divisible, the party must pay for the part of the performance completed

Question 22

Under the UCC 2-615, what are the 4 elements needed to be satisfied for a party to invoke the doctrine of impossibility?

Answer 22

1) did the event make performance as agreed upon impracticable,
2) Was the non-occurrence of the event a basic assumption on which the contract was made (did the parties foresee that this would happen)?
3) Did the party create the impracticability?
4) Did the party assume an obligation greater than that imposed by law (did the party assume the risk that the event would not happen?)

Question 23

Give an example of frustration of purpose

Answer 23

Hotel example. Renting a hotel room to watch a parade but then the parade doesn’t happen

Question 24

Define frustration of purpose

Answer 24

The doctrine of frustration of purpose applies when an unexpected event arises that destroys one party’s purpose in entering into the contract, even if performance of the contract is not rendered impossible.