Performance

Question 1

Covenant

Answer 1

In contract law, a covenant is a promise to act or to refrain from acting. It is not dependent upon the other party’s acts nor upon other events and, if the covenanting party breaches his covenant, the other party may bring an action for breach.

Question 2

Warranty

Answer 2

A type of covenant in which one party attests to certain facts, for example, a warranty that a product will work, will work in a particular way, or that goods and services are as the seller represented them to be.

Question 3

UCC Express Warranties

Answer 3

Under the UCC, when a seller affirms a fact or makes a promise to the buyer which relates to the goods and becomes part of the basis of the bargain, the affirmation or promise creates an express warranty that the goods conform to the affirmation or promise. Additionally, a description of the goods which is made part of the basis of the bargain creates an express warranty that the goods conform to the description. Finally, a sample or model which is made part of the basis of the bargain creates an express warranty that the goods conform to the sample or model.

Question 4

UCC Cumulation and Conflict of Warranties

Answer 4

Under the UCC, if reasonable, multiple warranties must be interpreted in a way such that the warranties are consistent and cumulative. If not reasonable, then the intention of the parties should determine the hierarchy of the warranties. The following rules govern such determination:

1) exact or technical specifications displace an inconsistent sample or model or general language of description,
2) a sample from an existing bulk displaces inconsistent general language of description, and
3) express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.

Question 5

Condition

Answer 5

A condition is an act or event which affects a duty to render a performance. A condition may be express or implied, and may be a condition precedent, a condition concurrent, or a condition subsequent.

Question 6

Condition Precedent

Answer 6

A condition precedent is related to an event, other than a lapse of time, which must occur before a duty on the part of the defendant will arise. It may arise out of an express or implied term of the contract, or by operation of law under the Doctrine of Constructive Conditions.

Question 7

Condition Concurrent

Answer 7

A condition concurrent is a type of condition precedent which exists when the parties to a contract are bound to render performance at the same time.

Question 8

Condition Subsequent

Answer 8

A condition subsequent is related to an event which, by agreement of the parties, operates to terminate a duty of performance after it has arisen.

Question 9

Express Condition

Answer 9

An express condition is stated in the contract and generally will be strictly and literally enforced by the courts.

Question 10

Implied-in-Fact Condition

Answer 10

An implied-in-fact condition is one which is necessary to the performance of the contract between the parties and therefore is deemed to have been intended by the parties, but is not expressly stated.

Question 11

Constructive Condition

Answer 11

A constructive condition is an implied-in-law condition, which the law will enforce even though the parties did not agree to it. Such conditions are implied by the law to promote justice.

Question 12

Doctrine of Constructive Conditions

Answer 12

A constructive condition is an implied-in-law condition, which the law will enforce even though the parties did not agree to it. Such conditions are implied by the law to promote justice.

Question 13

Implied Condition of Cooperation

Answer 13

An implied condition of cooperation is implied in a contract whenever the cooperation of the promisee is necessary for the performance of the promise.

Question 14

Satisfaction of Condition

Answer 14

In order to sue a defendant for failure to perform, the plaintiff must show that he has satisfied his own conditions or that his conditions are excused. A plaintiff satisfies a condition by complete performance, substantial performance (if it is a constructive condition), or by showing the contract is divisible.

Question 15

Substantial Performance

Answer 15

Under the Doctrine of Substantial Performance, a plaintiff who has failed to perform a constructive condition in a minor or immaterial respect may nevertheless recover on the contract. In order to recover, the plaintiff must prove:

1) the defendant got substantially what he bargained for,
2) the defendant can be reimbursed for what he did not receive,
3) there will be a great hardship on the plaintiff if he is denied recovery under the contract, and
4) the deviation was not willful.

Question 16

Divisible (or Severable) Contract

Answer 16

A divisible or severable contract is a bilateral contract in which the performance is divided into two or more separate units, either as to subject matter or time, and performance of each part by one party is the agreed exchange for a corresponding part by the other party. Some typical examples are construction contracts, contracts for the sale of goods and employment contracts.

Question 17

Excuse of Condition

Answer 17

An excuse of condition occurs when the plaintiff’s duty to perform is excused because the defendant has defaulted.

Question 18

Waiver of Condition

Answer 18

A waiver of condition results when a party to a contract voluntarily relinquishes his or her known right to assert the non-performance of a condition. A waiver can be given by express agreement or by conduct. A waiver may be retracted except where the other party has detrimentally relied on the waiver.

Question 19

Prospective Failure of Condition

Answer 19

A prospective failure of condition occurs when an anticipatory breach is present and will excuse the non-breaching party from his or her performance.

Question 20

Anticipatory Breach

Answer 20

An anticipatory breach occurs when one party to a contract makes it clear prior to the time performance is due that he or she will not perform. An anticipatory breach may be expressed in words or by action. The promisee may elect to sue immediately for damages or may wait until after performance has become due to then file suit.

Question 21

Anticipatory Repudiation

Answer 21

An anticipatory breach occurs when one party to a contract makes it clear prior to the time performance is due that he or she will not perform. An anticipatory breach may be expressed in words or by action. The promisee may elect to sue immediately for damages or may wait until after performance has become due to then file suit.

Question 22

Voluntary Disablement

Answer 22

An anticipatory breach occurs when one party to a contract makes it clear prior to the time performance is due that he or she will not perform. An anticipatory breach may be expressed in words or by action. The promisee may elect to sue immediately for damages or may wait until after performance has become due to then file suit.

Question 23

Prevention

Answer 23

Prevention occurs when a party to a contract makes it impossible for the other party to perform.

Question 24

Impossibility of Performance

Answer 24

A party to a contract will be released from an obligation to perform when, neither from his act nor from his neglect, and prior to being in default, it has become impossible for said party to perform.

Question 25

Equitable Estoppel

Answer 25

Under the doctrine of equitable estoppel, a party who has taken unfair advantage of another, by using false statements or conduct to induce the other person to act or promise to act, is barred from asserting a failure of condition against that other person.