Mitigating Doctrines Flashcards
What are the mitigating doctrines?
1) Prevention,
2) Waiver
3) Estoppel
4) Election
What is the mitigating doctrine of Prevention?
A party is not allowed to interfere with the performance of a condition from the other party.
What is the mitigating doctrine of Waiver?
Occurs when a party waives a condition that was previously negotiated for.
What is a retraction of a waiver?
Retraction is when a party waives a condition and then reinstitutes the condition which was previously waived.
Can a retraction of a waiver always occur?
No, a retraction of a waiver will not be allowed once the event has occurred. After the event occurs, it is no longer allowed to retract.
What is the mitigating doctrine of estoppel?
When a party waived a condition, then tried to retract that condition after the event has already occurred.
What is mitigating doctrine of election?
When a party excuses the non-occurrence of an event.
What is an event?
A condition is an event
What is an independent condition?
The parties performance obligations are not connected at all and can occur in either order.
What is a dependent condition?
One parties obligation is connected to the others performance obligation.
Common example is insurance contracts. You must pay before they cover you.
What is a mutual condition?
Both parties must be ready, willing, and able to perform at the same time. If one party fails then there is a breach.
What is an implied or constructive condition?
A condition supplied by the court, but they are exact same as the independent, dependent, and mutual.
When parties negotiate to perform work and the other to make payment, who must perform first when it is not specified in the contract?
The principle is settled that where work is to be done by one party and payment is to be made by the other, the performance of the work must precede payment.
