Performance Flashcards
What is a condition precedent
a future event that must occur before either parties performance is due
When is nonoccurence of condition excused
waives by words or conduct
party wrongfully prevents or interferes with condition occurrence
party indicates condition will not be enforced & other party reasonably and detrimentally relies
party substantially performed & will be harmed if not enforced
Unilateral Contract
requires performance instead of a return promise (like a bilateral contract)
Do you need to give notice of acceptance to form a unilateral contract?
It is not required
UNLESS the offer requires notice or the offer has reason to know that the offeror would not learn of the completed performance within a reasonable time
What is shipment contract?
parties are using a common carrier
the risk of loss passes from seller to buyer when goods are delivered to carrier
Destination contract
requires delivery to particular location
risk of loss passes from seller to buyer when the goods are delivered to the particular place
Disclaim Implied Warranties
Language that disclaims the warranty (oral or written depending on warranty type)
if examination would have revealed defect if the buyer examined the goods as fully as desired or refused to examine the goods before entering into the contract
Impractablility
There will not be breach if the perforamnce was discharged because of impracticability:
unforeseen vent occurs
nonoccurence of event was basic assumption on which contract was made
party seeking discharge was not at fault
Impractablility
There will not be breach if the perforamnce was discharged because of impracticability:
unforeseen vent occurs
nonoccurence of event was basic assumption on which contract was made
party seeking discharge was not at fault
Examples of Impractability
death, destruction of something needs, illegality
Can a party recover from impracatability
yes
Restitution damages are recoverable for benefits conferred before performance was discharged
Can a party recover from impracatability
yes
Restitution damages are recoverable for benefits conferred before performance was discharged
When is an obligation not delegable
when the other party has substnaitla interest in having the party perform or when prohibits delegation
Hierarchy to consider the admissibility of Extrinsic Evidence
express terms
course of perforamnce
course of dealing
trade usage
Implied Warranty Merchantability
seller is merchant & goods are their ordinary purpose
disclaim with conscious language doesn’t have to be in writing but can be
Implied Warranty Fitness Particular Purpose
seller has reasonable to know buyer has particular use for goods & buyer relies on seller expertise. doesn’t have to be a merchant but can be
disclaimed with conscpious language & in writing
ways to discharge performance
impracticability
impossibility
frustration of purpose
recession
release
destruction of good (UCC)
Partial Impracticability
only suspends duty, discharge only if perforamnce is material and burdernson
Frustration of Particular Purpose
events destroy purpose that the person entered into the contract. event doesn’t need to be completely unforeseeable
frustrated party may rescind
Defenses to Enforcement
Illegality
Unconscionability
Public Policy
Illegality
contract is unenforceable, void, duty to perform is discharged
UNLESS: ignorance of illegality, lack of legal purpose, divisible contract, licensing violation, resitituion
Quasi Contract
P conferred measurable benefit from Defendant
P acted w/o gratuitous intent
unfair for D to retain benefit
Implied Warranty of Merchantability
seller is merchant selling goods they normally sell
disclaim with conscious language can be oral or written
Implied Warranty of Fitness for a Particular Purpose
seller has reason to know that buyer is relying no expertise
disclaim conscious language & in writing
