Page 34 Flashcards
What is a promise?
Undertaking to perform or refrain from doing a designated act
What is an independent or unconditional promise?
One that is unqualified, and nothing but the lapse of time makes it enforceable
Does an independent or unconditional promise have to be performed even if the other party hasn’t performed?
Yes
If A promises to build a house for B, who will pay when the house is finished, what must A do?
He must perform before B is required to do anything. If he materially breaches, he can cancel and sue even though he hasn’t performed if he proves he was ready, willing, and able to pay
Can repudiation from either party relieve an independent promise of duty to perform?
Yes
Why are few promises independent?
Because it is presumed that a promise isn’t intended to be independent unless it clearly says so
What is an example of an independent promise in a lease agreement?
Tenant agrees to pay rent, and landlord agrees to make repairs. T still owes a duty even if the landlord doesn’t perform (but if LL’s nonperformance is extreme, it can make a constructive eviction that allows T to cancel the lease).
If separate contracts are entered by the same parties at the same time, and breach of one happens, what happens to the other?
It still stands and is not affected by the other breach
What is a mutually dependent promise?
When parties intend performance of one to be conditioned on performance by the other
What are the three types of conditions?
Precedent, concurrent, subsequent
What is a condition precedent?
An act or event, other than lapse of time, that must exist or occur before a duty to perform is triggered
What does a condition precedent trigger?
Performance
If a condition precedent is never met, what happens?
The duty is never triggered (duty didn’t disappear, it just wasn’t triggered)
What is an example of a condition precedent?
“I will buy your autographed baseball if your team wins the game.” Unless and until the team wins, there’s no obligation to buy the ball, and if the team doesn’t win, the condition failed.
Who has the burden of proof for a condition precedent?
P
How can a condition precedent be excused?
If wrongful conduct of a party prevents it from happening
A performance that requires time to accomplish is a condition precedent to what?
The promised performance of a single act of payment
What is a condition concurrent?
An event must simultaneously occur at the moment duty is being performed (performance exchanged at the same time)
For a condition concurrent, neither party can put the other in breach for failure to perform without what?
A tender: readiness and willingness to perform with present ability to do so, and notice to the other party
What is an example of a condition concurrent?
I will sell you my laptop and you will give me $1000, and we will exchange them at the same time
What is a condition subsequent?
Any event that discharges/terminates a duty of performance that has already arisen
What is an example of a condition subsequent?
S agrees to work for P for a month unless he is accepted to law school. His duty stays subject to the condition subsequent that he is not admitted
When do you often see condition subsequents?
In insurance policies. The company will pay for a theft, but only if after the theft happens and the duty to pay matures, proper reports are submitted. Theft and the filing of the report are both conditions precedent to the company’s performance of its promise to pay (if both conditions are fulfilled, company must pay or be in breach).
What is a tricky situation for conditions subsequent?
Often conditions are worded like they are subsequent, but they are actually precedent. Ie: Insurance company insures you against fire by saying their liability is discharged if you don’t send a report within 30 days or sue within a year. This is actually a condition precedent because the duty doesn’t arise unless a report is filed within 30 days, the other is a real condition subsequent because if suit is brought within a year, the duty is discharged.
