Performance and excuse of nonperformance Flashcards
What condition do goods need to be delivered in under Article 2
need perfect tender - goods delivered exactly as promised in the contract
list (4)
seller’s duties in shipment contracts where seller has not agreed to tender at a particular destination
- Carrier: put good in hands of a reasonable carrier
- Contract: make a reasonable K for transporation of goods to buyer
- Documents: obtain + tender documents for buyer to take possession of goods
- Notice: promptly notify buyer of shipment
seller’s duties in destination contracts where seller HAS agreed to tender at a particular destination
put and hold goods at buyer’s disposition
When is price due for a noncarrier case
tender of delivery
place of delivery in a noncarrier case
seller’s place of business if no other place mentioned
(or his home if no ppb)
When is price due for a carrier case
when buyer receives goods
when is price due for installment contracts
seller can demand payment for each installment
If a buyer uses a check to pay, the buyer’s duty to pay is:
suspended until check is cashed or bounces
promise vs. condition
in the context of failing to meet them
promise - failure of a promise is breach of K
condition - failure of a condition (taking place) relieves a party of obligation to perform
words such as “provided”, “if”, “when” usually indicate
a condition
words such as “promise”, ‘agree” usually indicate
a promise
what is a condition predecent
condition that must occur before duty of performance arises
condition concurrent
conditions that can occur together and parties bound to perform at same time
condition subsequent
condition that when it occurs cuts off an already existing duty of performance
“Curbside”
Excuses for nonperformance
Excuse of condition by:
- Cooperate, failure to; hindrance
- Unwillingness/inability to perform
- Repudiation, anticipatory
- Breach
- Substantial performance
- Impossibility, impracticability, frustration
- K Divisibility
- Estoppel/waiver
Excuse of condition by failure to cooperate/excuse of condition by hindrance
if a party’s duty to perform is tied to a condition and that party wrongfully prevents the condition from occurring, the other party is excused
💡⭐️ when faced with excuse of condition by failure to cooperate ask ⭐️💡
- Who is protected by condition?
- Did they do anything to give up the protection up?
Excuse of condition by estoppel or waiver
Party 1 can waive a condition
If Party 2 detrimentally relies on condition, Party 1 estopped from waiving
is consideration required for waiver of condition
no
Excuse of condition by breach
breach of K when performance is due excuses duty of counter performance
counter performance is excused under CL if breach is
material
Excuse of condition by anticipatory repudiation
AR excuses performance
AR = early statement of non-performance
Anticipatory repudiation applies to what type of Ks
Bilateral Ks with unperformed duties on BOTH sides
list (4)
What option does nonrepudating party have
- Treat AR as total repudiation and sue immediately
- Suspend their performance and wait to sue until performance date
- Treat repudiation as an offer to rescind and treat K as discharged -OR-
- ignore repudiation urger promisor to perform
Excuse of condition by unwillingness/inability to perform
P1 has reasonable grounds to believe P2 will be unable or unwilling to perform
Excuse of condition by substantial performance
Condition excused if party has substantially performed
BUT NOTE: courts generally apply substantial performance doctrine only if an implied in law condition is involved and will not apply doctrine if there is an express condition
(applying doctrine when there is an express condition would likely defeat the express intent of the parties)
most courts won’t apply doctrine of substantial performance if breach of duty was
willfull
Doctrine of substantial performance as it relates to sale of goods
applicable defense?
generally no because goods generally require perfect tender
Excuse of condition by K divisiblity
If K is divisible and party performs just those parts then they are entitled to the agreed-upon equivalent even if they fail to perform the other parts
list (3)
What is a divisible K?
Three tests must be concurrently met to make a K divisible
- Performance of each party is divided into two or more parts
- Number of parts due from each party is the same
- Each party performs the equivalent parts of each part of the divisible K (aka quid pro quo)
💡⭐️ When a CL K has a price unit immediately consider ⭐️💡
K divisibility!!
Contract can be discharged through
- Performance or tender of performance
- Occurrence of a condition subsequent
- Illegality
- Rescission
- Partial discharge through contract modification
- Cancellation
- Release
- Substituted Contract
- Accord and Satisfaction
- Novation
- Impossibility, Impracticability, Frustration
- Account stated
- Lapse
- SOL
Recission may either be
mutual or unilateral
mutual rescission
express agreement btwn the parties
the agreement to rescission is itself a binding contract supported by consideration
mutual rescission when a third-party beneficiary is involved
if rights have already vested → contract cannot be discharged by mutual rescission
executory contract
a contract that has not yet been fully performed or fully executed → meaning that unperformed obligations remain on both sides
for a contract to be effectively discharged by mutual rescission, the duties of the parties
must be executory on both sides
meaning that both sides have unperformed obligations
unilateral rescission
when one of the parties to the K desires to rescind it but other party desires that K be performed according to agreed upon terms
NOTE: if only one party owes an absolute duty to perform (unilateral contract) → cannot have mutual rescission
list (3)
what is needed for unilateral rescission
- offer of new consideration by nonperforming party
- elements of promissory estoppel (iow detrimental reliance) -OR-
- manifestation of intent by the original offerree to make a gift of the obligation owed to them
partial discharge by modification of a contract discharges the term of
original K BUT does not discharge the entire contract
What is an accord
agreement in which one party to an existing K agrees to accept some other different future performance in lieu of the performance they were supposed to originally receive from the other party
what is satisfaction
completion of accord agreement
does accord discharge to K
NO, it merely suspends. Need accord and satisfaction to discharge K
An accord must generally be supported by
consideration
what is a novation
when a new K substitutes a new party to receive benefits and the new party assume duties that had belong to original party that was supposed to receive benefits under old K
list (4) “pain”
what is needed for a valid novation
- previous valid K
- agreement amongst all the parties, including new
- immediate extinguishment of old contractual duties
- new valid and enforceable K
Does death or incapacity discharge a K by impossibility
NO if the services are the type that can be delegated to someone else
If there has been destruction of subj matter when will rules of discharge NOT apply
when ROL has passed to buyer
Will a mere increase in cost be sufficient to discharge a K
NO unless it changes nature of K
What is an account stated
K btwn parties whereby they agree to an amount as the final balance due
