Page 40 Flashcards
What is the UCC version of impossibility for a condition?
Casualty to identified goods before the risk of loss has passed
What is the UCC casualty to identified goods before the risk of loss has passed?
Discharges a duty if a supervening unforeseen event happens that makes it impossible for a reasonable person to perform the contract, and neither party assumed the risk
Under the UCC, if the price isn’t fixed, what happens?
Reasonable price is paid on delivery, but if the price was meant to be fixed in a manner agreed on, and the appraiser can’t set a price, even if goods are delivered, the contract is discharged and buyer must return them
Is it permissible under the UCC casualty to identified goods to have subjective impossibility?
No, it must be objective: no one could perform no matter what their situation, instead of that the actual promisor couldn’t perform but someone else could have
If you promise to dig a hole for your neighbor’s pool, but your backhoe breaks, is that subjective or objective impossibility?
Subjective because anyone with a working backhoe can do the job, so the duty is not discharged
What are examples of impracticability?
- death/disability of a performer
- illegality of performance
- destruction of subject matter
- unexpected events
- carrier transaction
- source of supply no longer available
If death of a party happens after formation of a contract, does that discharge the contract?
It depends:
- if contract calls for performance of an individual, and they can’t perform, then the duty is discharged.
- If performance is delegable, it isn’t excused
If you were apprehensive of impracticability or danger, when can that excuse nonperformance?
If there was danger to health or life
If you think you have AIDS and you don’t perform because of it, but you go to the doctor and find out you don’t, is the obligation still excused?
Yeah
If the subject matter of the contract is destroyed, deteriorates materially, or is unavailable, what happens?
Discharges the duty if it wasn’t the fault of the promisor
If you contract to rent a theater, but it burns down, what happens?
Defendant is excused and it isn’t a breach
What happens if there is a destruction of real property before a sale is complete?
- majority: buyer is the equitable owner so destruction doesn’t discharge his obligation to pay
- minority: uniform vendor and purchaser risk act: risk of loss is on the seller until buyer takes title or possession
If a builder who constructs a new building has his building destroyed before it is completed, what is his duty?
He must rebuild or be in breach, but late performance is excused if the destruction wasn’t his fault (because he contracted to give a building, not a specific building)
If someone is repairing a building or working on a portion of it, and it is destroyed without his fault, what does that do to his obligation?
Discharges it
Who has the risk of loss under UCC goods being shipped via carrier?
Seller
Who has the risk of loss under UCC goods held by a bailee?
The seller until the buyer gets title or possession
Who has the risk of loss under UCC identified goods in a contract where goods get destroyed/damaged before passing to buyer?
If loss is not total: buyer can avoid contract or accept what is left and offset the price
Who has the risk of loss when goods are shipped from one location to another involving an intermediary under the UCC?
Risk of loss passes to buyer when seller tenders delivery to carrier
When is a carrier of goods liable for damages to them?
If they are on notice of the purpose of the cargo and there is no substitute if it is lost, delayed, or injured in transit
If there is a partial casualty of goods during delivery, what happens?
- the buyer can choose to treat the contract as terminated, or
- accept the remaining available goods with a price adjustment
If the only or agreed source of supply is no longer available, what does that do to the seller’s duty to furnish the goods?
It excuses it
If a contract calls for wine from a specific vineyard that gets burned down, what happens to the contract?
It is discharged
If the seller is a middleman, and his source of supply fails, is that a defense?
Not if the source wasn’t contemplated by both parties, plus the middleman must take all due measures to make sure his supply doesn’t fail
If a company employs a middleman to buy molasses for them, and the middleman doesn’t make a contract with the refinery to buy the molasses, and then suddenly isn’t able to get enough, can he claim discharge because of impossibility?
No, because he didn’t take all due measures to assure himself the supply wouldn’t fail
