Kaplan Pgs 233-257 Performance Flashcards
What is a non-carrier case?
When the parties do not intend for the goods to be moved by a common carrier
What is a carrier case?
Wen, according to the expressed terms or the circumstances of the agreement, the parties intend for the goods to be moved by a common carrier
What is a Destiination contract?
When the seller agrees to tender the goods at a particular Destiination
What’s the deal with free onboard contracts?
It will state FOP and then the location. That will mean that the seller’s risk and expense ends once he puts it in the possession of the carrier at that location
What are the two different types of free onboard shipments?
Dash FOB cellars place of shipment
– FOB destination
What is the difference between FOB cellars place of shipment and FOB destination?
– Shipment: the seller only has to pay and have risk to get the goods to the possession of a carrier at the sellers place of shipment
– Destiination: the seller has to add his own expense and risk tender delivery of the goods at the Destiination location
What does it mean for delivery to be “free along side“ or “FAS“?
The seller has to deliver the goods along side the vessel or on a dock designated by the buyer
What are the buyers rates, unless agreed otherwise, with relation to inspection of the goods?
The buyer has the right unless the parties agreed otherwise to inspect the goods upon tender and delivery before making payment or excepting
What happens to the risk of loss generally speaking when a seller shipped the goods by carrier?
It usually passes to the buyer once the goods are delivered to the carrier as long as the contract doesn’t require that the seller deliver the goods at a particular Destiination. If it is a Destiination contract, the risk shift when the goods are tendered at the Destiination
What are some exceptions to the pre-existing duty rule of common law?
Dash mutual modification
– unforeseen circumstances
Does the pre-existing duty rule apply under the UC see?
No
Why does an agreement that modifies an existing contract for the sale of goods under the UC see not require consideration?
Because of the good faith test
What is the difference between unilateral mistake and mutual mistake?
- Unilateral: when only one party makes a mistake about a material fact in the contract, he’s not excused from his performance unless the other party knew or had reason to know if the mistake or the mistake was based on a clerical error
- Mutual mistake: when both parties have the same faulty assumption regarding the contract, the contract is voidable by the disadvantaged party when the faulty assumption is essential to the contract, both parties were mistaken, and the disadvantaged party did not bear the risk of a mistake under the agreement
What are the three main types of impossibility?
– Distraction of the subject matter
– death or incapacity
– illegality
What is the idea of impracticability and what are the elements for it?
Idea: the promisor can be excused if unforeseen difficulties come up that are either prohibitively expensive or extremely burdensome
Elements:
– impracticability was caused by an unforeseen contingency
– the risk was neither assumed nor allocated by the parties
– the increase in the cost of performance is far beyond what either party anticipated
Is increased cost alone sufficient for impracticability?
No
Where is situation under the UC see that are likely to trigger impracticability?
Dash severe shortages of raw materials or supplies that are caused by:
– Warr/embargo
– local crop failure
– unforeseen shut downs of major sources of supply
What are the three elements for frustration of purpose?
– The parties principal purpose to enter the contract was frustrated
– there was substantial frustration
– a basic assumption of the contract was non-occurrence of the event that precipitated the frustration [AKA: the event that caused the frustration was not reasonably foreseeable]
What are the circumstances when you would make an adequate assurance of performance?
When an anticipatory repudiation can’t be established but there are reasonable grounds for insecurity to believe that the other party is unwilling or in able to perform
How much do you make a demand for adequate assurance of performance?
It must be made in writing. The response to it can be either in writing or oral
If a party makes a demand for adequate assurance of performance, and doesn’t hear anything, what happens?
The insecure party can treat it as a repudiation as long as there was no response within 30 days/reasonable time or the response was not a reasonable assurance
What is the difference between a promissory condition and a pure condition?
– Promissory: performance is conditioned on the person doing something first
– pure: performance is conditioned on events happening that are beyond the control of either party
Under the common-law, What is the difference between what happens if a condition fails if the condition was express or implied?
Dash express: the parties obligations to perform are discharged
What are situations when a failed condition would be excused and you would have to perform anyway?
Dash if the party who had been discharged from performing because of the field condition waived the right to discharge and performed anyway
– if the condition was excused because of bad faith, then the person who acted with bad faith would have to perform anyway
