Page 45 Flashcards
What is a present breach?
Party doesn’t perform a contract obligation that has become absolute
When has an obligation become absolute?
When there are no unsatisfied or unexcused conditions
Why is it not a good idea to repudiate a contract on your own when the other party has materially breached?
Because if the court doesn’t agree that the breach was material, you are guilty of your own material breach
If one party breaches, what does the UCC say you can do?
Withhold partial payment
What are the two effects that a material breach has?
Gives an immediate cause of action for breach of the whole contract, and excuses any further performance by the innocent party
What can you do if a minor breach has happened?
Sue for partial breach and get damages, but you can’t cancel the contract
If you have an ongoing contact with someone, and halfway through, they commit a minor breach, what can you do?
You can sue for damages, but you cannot terminate, and if you do, then you are in breach and the other party can sue you
How does the UCC treat “time is of the essence”?
It is not applicable to UCC
If you just write a date for performance, does that make time of the essence?
No, the contract has to specifically state that time is of the essence
If a contract has a date for performance, but doesn’t say that time is of the essence, must the party perform on that day?
No, they can have a reasonable delay without a breach, but unreasonable delays are total breach
If contract says that time is of the essence, and there is a delay, what happens?
The delay is a total breach
If a party excuses the time is of the essence clause, can they reinstate it later?
Yes, but only if the other party didn’t detrimentally rely on the waiver
What are the two different views about not performing on time if there is a time is of the essence provision?
- traditional: even a slight delay is a material breach
- today: to avoid disproportionate forfeitures, all of the circumstances are considered and a minor delay is not material unless language stipulates the effect of the delay
What is involved in the UCC exception to a material breach that allows for “time to cure”?
UCC time to cure if:
- time for performance hasn’t come yet: seller can make a conforming delivery within the contract time
- time for performance already passed: seller can cure if:
• he had reasonable grounds to believe tender would be accepted, and
• he seasonably notified buyer (or it came to his attention) of intention to cure and he cures within a reasonable time
What are the options for a buyer if nonconforming goods were delivered to him under the UCC?
He can accept or reject them within a reasonable time after tender and recover damages if he gives proper notice of the nonconformity
