Perfomance Obligation Flashcards
Seller’s obligation
Obligated to tender delivery.
In carrier case, seller obligated to deliver to carrier with instructions to deliver.
Destination K
FOB at other than sellers location.
Shipment K
FOB at sellers location.
FOB point is place of delivery.
Buyer’s obligation
Buyer has duty to pay that then triggers sellers duty to deliver.
* But buyer has right to inspect goods before accepting and can still reject even if he paid already.
Modification
Consideration is needed for a modification.
Increase in payment is enforceable if there is increase performance too.
Risk of loss
Carrier case: risk with buyer when seller gives to carrier.
Non carrier, seller merchant: seller has risk until buyer takes possession. Risk with seller if he makes non-conforming delivery until cure or acceptance.
Non carrier, seller not merchant: seller bears risk until he makes them available (tenders) to buyer.
Buyer revokes, then seller is liable if buyer is under insured.
If buyer breaches before he takes the risk, then seller can treat risk as with buyer for reasonable time and to extent he is under insured.
Modification under UCC
No pre-existing duty rule.
Modification not need consideration.
Modification must be in good faith.
Unilateral mistake
One party mistaken about material fact.
Does not excuse his duty to perform unless the other party knew he was operating on mistake.
Mistake
Enter into K based on faulty assumptions about present circumstances
not future circumstance.
K void able by disadvantaged party.
Impracticability
Promisor can be excused from performance if unforeseen circumstances made performance prohibitively expensive or burdensome.
Impossibility
Performance impossible due to circumstances arising after the K was entered into.
Excuses both parties from performance.
Must be objectively impossible (not subjectively impossible).
Impracticality under UCC
Performance excused when
- Goods ID’d in K were destroyed
- Performance became illegal
- Performance is prevented by a non foreseeable event the non occurrence of which was a basic assumption of the K.
Florida impracticability
K will be impracticable when circumstances made performance vitally different from what was anticipated.
Frustration of purpose
Discharge obligations when:
- Parties principal purpose in entering the K is frustrated,
- Frustration is substantial
- Nonoccurrence of the event was a basic presumption of the K.
Mutual rescission
Parties both agree to discharge the others duty under the K.
