Page 43 Flashcards
What are the different ways a discharge of condition can happen?
- mutual rescission
- release
- accord and satisfaction
- payment in full check
Is mutual rescission considered binding?
Yes, because both parties surrender their right to the other’s performance
If one party has completed performance, can mutual rescission apply?
No, because mutual rescission must involve both parties giving up a right
Must mutual rescission be in writing?
Only if it is for an interest in land or sale of goods under the SOF
How can the maker of a contract get a release that extinguishes the contractual rights in his favor?
By using adequate consideration
Must a written release always have new consideration?
No, many states say it is effective without new consideration because a writing is a substitute for consideration
What does the UCC say about releases?
Duties can be discharged by a written release that is signed and delivered even without consideration
What are the two types of breach?
Anticipatory and present
What is anticipatory breach?
Party entitled to the condition repudiates before performance by clearly indicating he will not perform. This excuses the condition and the person is immediately liable for breach, and the innocent person can bring an immediate action for the entire value of the promised performance.
Can there be an anticipatory breach if the innocent party has already fully performed and is just waiting for the date performance will be due?
No
Is a good faith repudiation where a party states honorable motives for not performing OK?
Good faith is immaterial. Performance is judged by an objective test.
Anticipatory breach accelerates the breach to what moment?
To the moment of repudiation and allows the person to immediately sue
Under the UCC, what are damages for anticipatory breach?
The difference between market value at the time plaintiff learned of the breach and the contract price.
What are the three actions that create an anticipatory breach?
- unequivocal statement that party will breach
- transfer of essential item for performance to someone else
- voluntary act that makes performance impossible
If a repudiation happens at the same time as non-performance, is that anticipatory repudiation?
No, that is present repudiation and a breach
What are the two ways to repudiate a contact?
Express and by conduct
If you express doubt, is that a repudiation?
No
How can you expressly repudiate a contract?
Reasonably clear and sufficiently positive communication to the other party that you are repudiating
How do you repudiate a contract by conduct?
Do an act that prevents performance
If you agree to buy someone’s car if you can get financing, but while that is pending, you file for bankruptcy, what has happened?
You have repudiated the contract by conduct, because filing for bankruptcy prevents the financing, which excuses all conditions and accelerates the breach
What is needed in order to make an adequate assurance of performance request under the UCC?
Must have reasonable grounds to think that tender will not be made
How much time does a person have to respond to a request for adequate assurance of performance?
A reasonable time that is not more than 30 days
If you make a request for adequate assurance of performance under the UCC, what can you do until you get an answer?
Suspend performance
If a party indicates through words or actions that he doesn’t intend to perform, what can the other party do?
He can bring an immediate suit, or if it is a total breach, he can terminate the contract.
But if the aggrieved party has completely performed, and repudiation happens, he can’t sue until the time for the other’s performance has passed.
If the non-repudiating party has already completed performance, why does anticipatory breach not apply?
The innocent party just has to wait to sue until there is an actual breach.
