Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Contract law > Performance > Flashcards

Performance Flashcards

1
Q

Performance issues

A

SPWCEA - Stevie Plays With Cats Every Afternoon

S - Substantial performance v. Perfect tender?
P - Parol evidence rule?
W - Warranties?
C - Conditions?
E - Excuses?
A - Anticipatory repudiation?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Substantial performance vs. Perfect tender

Common law vs. UCC

What do courts consider when determining whether there is a breach?

A

CL = Substantial performance. Material breach = performance discharged. Courts consider:

Benefit lost to nonbreaching party (NBP)
Adequacy of compensation for NBP's loss
Cure likelihood
Extent of forfeiture by BP if BP is denied BoB
R2 §241
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Warranties - type, disclaimer, recovery upon breach

A

Warranties = representation of “quality”

EW = basis of bargain (sample, affirmation)
Difficult to disclaim
§2-313

IW = MERCHANT, fit for commercial purpose
Disclaim conspicuous writing / Orally “merchantable”
§2-314

IWFPP = NOT just merchant, knowledge of B’s use
Disclaim IN WRITING conspicuous (“as-is”)

Recovery = Value as warranted - as accepted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Anticipatory repudiation

Definition

UCC vs. common law

What are P’s options?

By when may D retract under UCC?

A

Unequivocal communication of refusal to perform.

CL = unequivocal

UCC = unequivocal OR failing to assure when reasonably requested (<30 days)

Breach of K, suspend performance, discharge duty, ignore (mitigation)

D may retract before P materially alters position
§609

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Condition

Definition

Promissory vs. pure condition

Satisfactory condition - traditional vs. modern

Party can either enforce or ______?

Once party relies on ______, what happens?

A

CONDITION is an event which is uncertain to occur, upon which duty of one of the parties depends

Nonoccurrence of a promise = BREACH
Nonoccurrence of a condition (NOC) = DISCHARGE OF PERFORMANCE

R2 §§225 (NOC)
R2 §246 (acceptance excusing NOC)

Satisfaction - subjective (traditional) / reasonable person (modern)

Types:
Waiver (words, conduct or written) - estopped from revoking waiver

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Excuses

Definition

What are the 3 types?

A

Defense which exempts from a condition due to unforeseen circumstances.

Impracticable or impossible (nonoccurrence of a cond. is basic assumption on which K is made) (e.g., illegality, warehouse fire)
§261

Frustration of purpose - unforeseeable, not impossible, P not at fault (ticket for concert, headliner sick)

Precedent (prior), concurrent (same time), subsequent (discharges performance)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

When conditions are not satisfied, performance may be excused unless a U-WEEP exception applies

A

U-WEEP

U - Untimely specifications
W - Waiver
E - Estoppel
E - Excessive forfeiture
P - Prevention
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Parol Evidence Rule

Types of Ks relevant to PER and explanation

A

Extrinsic evidence prior or concurrent with K generally inadmissible.

Fully Integrated - complete and final agreement (look for complete/final agreement and MERGER clause) - EE cannot add OR contradict

R2 §213 / UCC §2-202

Partially - final but incomplete - EE can add but NOT contradict

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Parol (extrinsic) evidence can be used to:

A

Establish the FACCS

F - Formation defects
A - Ambiguities
C - Conditions precedent
C - Collateral agreements
S - Subsequent modifications
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Parol evidence - interpreting ambiguity - weight given to performance, dealing and trade usage

A

Course of performance > course of dealing > trade usage

Look at # of syllables

5 > 4 > 3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Parol evidence rule - definition

A

Extrinsic evidence to a contract offered to vary, supplement or explain K’s written terms.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Parol evidence - course of performance vs. course of dealing - When do they occur?

A

Course of performance - occurs after the K made.

Course of dealing - occurs before K made.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Condition - definition

A
  1. Uncertain event
  2. Must occur before
  3. Duty to perform arises
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Effects of promissory vs. pure conditions on Ks

A

Nonoccurrence of a promise = BREACH

Nonoccurrence of a condition (NOC) = DISCHARGE OF PERFORMANCE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Waiver

A

knowing, voluntary, unilateral abandonment of a right

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Satisfaction clause - Can a party’s subjective satisfaction determine whether a condition is met?

A

Yes, but if not specified in K, courts will apply reasonableness standard and my use trade standards or another objective benchmark.

17
Q

Disproportionate forfeiture elements

A

MRL - it would be IMmoRaL to hold the party responsible for nonoccurrence of a condition when:

  1. M - Condition not MATERIAL
  2. R - Obligee substantially relied
  3. L - Obligee’s loss&raquo_space; if condition enforced
18
Q

How may a merchant disclaim merchantability? 3 ways.

A
  1. As-is/with all faults - WRITING
  2. Using “merchantability” or a variant - ORAL
  3. Buyer refuses to inspect

NO OTHER METHODS

19
Q

Requirements to revoke acceptance of goods under the UCC?

A
  1. Reasonable expectation of seller’s cure
  2. Seller assures conformity
  3. Difficulty in discovering nonconformity
20
Q

In a contract for the sale of goods delivered by carrier, when does the risk of loss pass to the buyer if no destination is specified?

A

No destination specified = delivered to carrier

Destination specified = tenders delivery

21
Q

What 3 types of events will constitute the excuse of impossibility?

When D has another _______, performance be excused.

On what standard is impossibly judged?

A
  1. Death or incapacity
  2. Destruction
  3. Law

Destruction only if risk not assumed.

When D has another contractual obligation which conflicts, such as destruction of subject matter causing delay, then courts will allow impossibility excuse.

22
Q

Impracticability - elements

A

UBDCR

  1. U - Unforeseen circumstances
  2. B - Nonoccurrence of condition was Basic assumption of K
  3. D - Performance difficult
  4. C - Party didn’t cause event
  5. R Party did not bear risk of event
23
Q

Purpose substantially frustrated if

A

Performance has become virtually worthless.

24
Q

Frustration of purpose - elements

A

Because frustrated, VARU became virtually worthless.

  1. V - Performance Virtually worthless
  2. R - Risks not assumed
  3. A Basic Assumption on which K was made
  4. U - Unforeseen circumstances

“Frustration of purpose” excuses performance of a duty IF:

* the purpose or value of the contract,
* which the parties knewwhen they entered into the contract,
* has been completely or almost completely destroyed
* by asupervening actor event not foreseenor caused by the parties.
25
Q

If a K does not specify a time of payment, when is it generally due?

What type of condition is delivery and payment?

A

When buyer receives the goods.

Concurrent condition. If the buyer does not pay, the seller does not have to deliver goods, and vice versa.

26
Q

Default delivery under UCC

and

How described (FOB …)

A

Shipment K

FOB “seller’s city”

27
Q

Shipment K - When does risk of loss pass?

and

Who pays shipping?

A

RoL passes at common carrier

Buyer pays shipping

Shipment K is default (FOB seller’s city)

28
Q

Non-default delivery under UCC

and

How described (FOB…)

A

Destination K

FOB “anywhere else” besides seller’s city

29
Q

When does risk of loss pass under a destination K (FOB anywhere else but seller’s city) - non-default method

A

Stays with seller until arriving at buyer

30
Q

Who pays shipping under a destination K?

A

Seller

31
Q

When does risk of loss generally pass when seller is not a merchant

and

when seller is a merchant?

A

Goods made available to B when non-merchant

If merchant, then upon B’s possession

32
Q

Which party bears risk of loss in a breach under UCC?

A
  1. Nonconforming/seller breach = seller until buyer accepts
  2. Revokes acceptance = seller all along (to extent of deficiency in buyer’s insurance coverage)
  3. Buyer repudiates before RoL passes, treated as buyer having RoL (to extent seller’s insurance deficient).
33
Q

If a K does not specify a place of delivery, where is the seller obligated to deliver?

A

Nowhere. Seller is required to make them available at seller’s place of business.

34
Q

Under UCC perfect tender rule, buyer can reject any or all unless:

A

UNLESS PIC:

P - Parties agree to substantial performance
I - Installment Ks (B can reject specific installment when SUBSTANTIALLY impaired)
C - Cure nonconformity (B must give S if not expired or B might accept replacement)
§2-508

35
Q

Buyer fails to reject, deemed accepted unless

A

B fails to reject, DEEMED accepted, UNLESS VaCaTeD:

Va - Value substantially impaired (by nonconformity)
C - Cured - B reasonably expected nonconformity to be
T - Time of revocation is reasonable after acceptance
D - Difficulty to discover nonconformity

36
Q

Accord and satisfaction - definition

A
  1. An agreement in which a party to an existing contract
  2. agrees to accept different consideration,
  3. in lieu of the original consideration they were to receive,
  4. the completion of which constitutes a satisfaction and binding agreement.
37
Q

Impossibility - elements

A
  1. Objectively not able to perform
  2. Similarly situated (very fact-specific)

Look for other contractual obligations which could make it objectively not possible.

Contract law (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions