Brainscape's Knowledge GenomeTM

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


See full index

Contracts > Performance and Breach > Flashcards

Performance and Breach Flashcards

1
Q

Contract Performances - Types of performances (6)

A

1) Full satisfactory
2) Substantial
3) Excusable non-performance (CIISSU)
4) Insecurity and assurance
5) Non performance but: accord/novation/cancellation/waiver/release
6) Breach

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

Contract Performances - Full satisfactory - Gral

A
  • When all conditions of performance are satisfied
  • All parties are discharged from their contractual obligations
  • Allows for 3 possible types of conditions to trigger/limit/extinguish duty to perform: a) precedent, b) concurrent, c) subsequent
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Contract Performances - Full satisfactory - Types of conditions (3)

A

1) Precedent 2) Concurrent 3) Subsequent

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

Contract Performances - Full satisfactory - Condition Precedent - Gral

A
  • Has to occur in order for duty to perform matures - “triggers”
  • Can be waived by party or excused by court.
  • i.e.: performance when unilateral contract OR obtain approval from party/3rd party (objective/substantive standard test for court to determine approval/rejection)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Contract Performances - Full satisfactory - Condition Precedent - When condition is approval - Standards

A

1) Objective: reasonable person would approve when involves mechanical utility or operational fitness (i.e. architect certification)
2) Subjective: When approval involves personal taste

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

Contract Performances - Full satisfactory - Condition Precedent - Timming

A
  • Time of the essence
  • small delays not actionable
  • If specific time set in contract is usually enforceable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Contract Performances - Full satisfactory - Condition Concurrent - Gral

A
  • Requires both parties to perform promises simultaneously or about the same time
  • Can be constructive (created by court) for fairness equity, and even make 1 dependent of the other (hence not enforceable independently)
  • i.e.: property sale where deed tendered at time of payment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Contract Performances - Full satisfactory - Condition Subsequent - Gral

A
  • Predefined uncertain future event that DISCHARGES duty to perform by one/both parties
  • i.e. lease termination if house used to sell alcohol
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Contract Performances - Full satisfactory - Condition Frustration and/or Excuse

A
  • Party cannot intentionally/wrongfully prevent/obstacle occurrence of condition to avoid contractual obligation
  • Waiver can be express or implied
  • Waiver not revocable once it generated reliance
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Contract Performances - Substantial performance - Gral

A
  • UCC: “perfect tender” rule: need perfect performance to avoid forfeiture
  • CL: less strict
    • OK when minor defect in good faith still generates substantial benefit
    • Dx from defect deduced from contract price
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Excusable non- performance - Gral

A
  • duty discharged totally/aprtially/temporarily if performance becomes impossible, unduly burdensome BC of event unforeseable at time of contact. - applies in CIISSU situations (cooperation lacking, illegality after formation, incapacity of personal service contractor, source of supply impossible, subject matter distroyed, UCC failure of a presupposed condition)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Excusable non- performance - ClISSU - Cooperation lacking or hindrance

A

Lack of coop form one party discharges the other party and allows for possible dx recovery

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

Excusable non- performance - ClISSU - Illegality after formation

A

Legislation enacted post contract formation

  • Discharges both parties
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Excusable non- performance - ClISSU - Incapacity of personal service contractor

A

Death/Incapacity

  • only that part is capable to fulfil contract
  • parties discharged
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Excusable non- performance - ClISSU - Source of Supply Impossible

A
  • When w/o any fault from promisor / contract is discharged
  • When source was specific, if not seller must purchase somewhere else to satisfy
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Excusable non- performance - ClISSU - Subject Matter destroyed

A
  • aka “Frustration of purpose” / when w/o fault of any of the parties.
  • If executory contract - there is no excuse if party can easily find replacement
17
Q

Excusable non- performance - ClISSU - Subject Matter destroyed - Special rule for contractors

A

When partially executed contract - Risk of loss usually stays with contractor until completion UNLESS contract only for repairs the contract is discharged and contractor entitled to recovery for value of work to taht point

18
Q

Excusable non- performance - ClISSU - UCC Failure of Presuposed Condition

A
  • When is commercially impracticable or force majeure then performance is excused (discharge might only be temporary)
    • i.e. terrorist attack, fire, war, embargo
  • Not foreseable at time of contract + beyond parties control
  • Includes government regulation
19
Q

Excusable non- performance - ClISSU - UCC Failure of Presuposed Condition - Part performance Rule

A

part performance may stil be required if possible in fair + reasonable manner

  • Buyers should be notified of the available quota and expected delay / Buyer’s choice to agree w/quota or to terminate contract if defect substantially impairs value of total contract
20
Q

Insecurity and assurance of performance - UCC Gral

A

UCC establishes statutory right to performance security if reasonable grounds for to question other parties willingness/ability to perform

  • acceptance of non conforming lot or payment doesn’t prejudice party right for future use
21
Q

Insecurity and assurance of performance - UCC - Procedure

A

Party has nto present wirtten demand and other party 30 days to give response with assurance (no specific form of response - just complete communication!!!)

22
Q

Insecurity and assurance of performance - UCC - Consequences of non compliance

A
  • Contract treated as repudiated + Party asking for assurance can suspend own performance w/o breach. Buyer then entitled to goods only on COD
23
Q

Non-performance but - gral

A

When performance is not possible but parties agree on modify or end contract liability by accord/satisfaction, novation, cancellation, waiver, release or promise not to sue, or modification

24
Q

Non-performance but - Accord and Satisfaction

A
  • Compromise to modify original performance WHEN amount is unliquidated or disputed
  • New performance aka “satisfaction”
  • Satisfaction discharges obligation form both new and original contract
25
Q

Non-performance but - Accord and Satisfaction - Non performance effect

A

Obligee can sue on either original or accord agreement

26
Q

Breach of Contract - Performance Presently Due Rule

A

Breach when no performance on due date

27
Q

Breach of Contract - Anticipatory Repudiation / when, effects for other party, retraction

A
  • Party demostrates clearly/unequivocal intetntion to not continue performance in the future, substantially impairing value of the contract
  • Non-repudiating party allowed to SUSPEND PX + CANCEL CONTRACT + DX (also option to “wait and see” untill due date)
  • If retraction before change of position - there is no repudiation and contract remains valid and enforceable
28
Q

Breach of Contract - Anticipatory Repudiation / UCC Treatment

A

Grounds for demanding assurance

29
Q

Breach of Contract - Divisibility of Contract / difference btwn CL and UCC

A
  • CL: to avoid forfeiture, it is possible to equivalent pyament for performed portion
  • UCC: “Single delivery” rule is default
30
Q

Breach of Contract - Installment Contract Rules

A

Allows for separate delivery

  • non conforming installments acceptent if seller gives enough insurance of curing
31
Q

Breach of Contract - Minor Breach Rule

A

Question of fact for court:

  • does it affect essence of contract or bargain?
  • If yes: non breaching party can cancel its own execution
  • If no: other party has to keep performing
32
Q
A

Contracts (13 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions