Justification for Nonperformance Flashcards
What are the 7 justifications for non-performance?
ACDEMMM
Anticipatory Repudiation Changed circumstances Divisibility Express Conditions Material breach Mistake Modification
Define mistake
A mistake is a belief that was not in accord with the facts at the time the contract was entered into.
A poor prediction of future events is not a ____
Mistake
What are the two types of mistake?
Mutual
Unilateral
Define mutual mistake
Both parties suffer from the mistake
What are the 3 questions in the mutual mistake test?
BA/MA/AR
- Does the mistake go to a basic assumption on which the K was made?
- Does the mistake materially affect the partie’s performance?
- Did the party seeking relief from the K assume the risk of the mistake?
Define unilateral mistake
Only one party suffers from the mistake
What is a good counterargument for a unilateral mistake?
If i knew about it, why didnt you?
What are the 5 questions in a unilateral mistake test?
- Does the mistake go to a basic assumption on which the contract was made?
- Does the mistake materially affect the parties’ performance?
- Did the party seeking relief from the K assume the risk of the mistake?
- Is Enforcement of the contract oppressive or unconscionable ?
- Did the other party know or have reason to know of the mistake?
What are the 3 types of changed circumstances?
Impossibility
Impracticablitliy
Frustration of Purpose
Under the Doctine of Impossibility, a party will not be held in breach if they can show these 3 things
- 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.
Define anticipatory repudiation
Anticipatory repudiation is present where a party says or does something to repudiate the contract before the performance is due.
Upon repudiation what can an injured party do?
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.
Define express condition
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
What are the two types of express agreements?
Express condition precedent
Express condition susbsequent
How are express conditions created?
Express condition are created by lanaguage.
“on condition that” “if” “provided that” “unless”
What are the 5ways nonoccurence of event can be excused by?
- breach by prevention
- Forfeiture
- Impracticability
- Supervening illegality
- Waiver
If the event is excused, the party is entitled to ____
Performance
Define divisibility
A K is divisible if performances under that contract can be divided into corresponding pairs AND each performance is equivalent to the other.
What are the 2 questions for the analysis on whether or not a K is divisible?
Can performances be divided into corresponding pairs?
Are those performances the equivalent of each other?
What happens if a K is divisible?
4p’s and a C
If K is divisible, the party must pay for the part of the performance completed
Under the UCC 2-615, what are the 4 elements needed to be satisfied for a party to invoke the doctrine of impossibility?
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?)
Give an example of frustration of purpose
Hotel example. Renting a hotel room to watch a parade but then the parade doesn’t happen
Define frustration of purpose
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.
