Performance and excuse of nonperformance

Question 1

What condition do goods need to be delivered in under Article 2

Answer 1

need perfect tender - goods delivered exactly as promised in the contract

Question 2

list (4)

seller’s duties in shipment contracts where seller has not agreed to tender at a particular destination

Answer 2

1. Carrier: put good in hands of a reasonable carrier
2. Contract: make a reasonable K for transporation of goods to buyer
3. Documents: obtain + tender documents for buyer to take possession of goods
4. Notice: promptly notify buyer of shipment

Question 3

seller’s duties in destination contracts where seller HAS agreed to tender at a particular destination

Answer 3

put and hold goods at buyer’s disposition

Question 4

When is price due for a noncarrier case

Answer 4

tender of delivery

Question 5

place of delivery in a noncarrier case

Answer 5

seller’s place of business if no other place mentioned

(or his home if no ppb)

Question 6

When is price due for a carrier case

Answer 6

when buyer receives goods

Question 7

when is price due for installment contracts

Answer 7

seller can demand payment for each installment

Question 8

If a buyer uses a check to pay, the buyer’s duty to pay is:

Answer 8

suspended until check is cashed or bounces

Question 9

promise vs. condition

in the context of failing to meet them

Answer 9

promise - failure of a promise is breach of K

condition - failure of a condition (taking place) relieves a party of obligation to perform

Question 10

words such as “provided”, “if”, “when” usually indicate

Answer 10

a condition

Question 11

words such as “promise”, ‘agree” usually indicate

Answer 11

a promise

Question 12

what is a condition predecent

Answer 12

condition that must occur before duty of performance arises

Question 13

condition concurrent

Answer 13

conditions that can occur together and parties bound to perform at same time

Question 14

condition subsequent

Answer 14

condition that when it occurs cuts off an already existing duty of performance

Question 15

“Curbside”

Excuses for nonperformance

Answer 15

Excuse of condition by:

1. Cooperate, failure to; hindrance
2. Unwillingness/inability to perform
3. Repudiation, anticipatory
4. Breach
5. Substantial performance
6. Impossibility, impracticability, frustration
7. K Divisibility
8. Estoppel/waiver

Question 16

Excuse of condition by failure to cooperate/excuse of condition by hindrance

Answer 16

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

Question 17

💡⭐️ when faced with excuse of condition by failure to cooperate ask ⭐️💡

Answer 17

1. Who is protected by condition?
2. Did they do anything to give up the protection up?

Question 18

Excuse of condition by estoppel or waiver

Answer 18

Party 1 can waive a condition

If Party 2 detrimentally relies on condition, Party 1 estopped from waiving

Question 19

is consideration required for waiver of condition

Answer 19

no

Question 20

Excuse of condition by breach

Answer 20

breach of K when performance is due excuses duty of counter performance

Question 21

counter performance is excused under CL if breach is

Answer 21

material

Question 22

Excuse of condition by anticipatory repudiation

Answer 22

AR excuses performance

AR = early statement of non-performance

Question 23

Anticipatory repudiation applies to what type of Ks

Answer 23

Bilateral Ks with unperformed duties on BOTH sides

Question 24

list (4)

What option does nonrepudating party have

Answer 24

1. Treat AR as total repudiation and sue immediately
2. Suspend their performance and wait to sue until performance date
3. Treat repudiation as an offer to rescind and treat K as discharged -OR-
4. ignore repudiation urger promisor to perform

Question 25

Excuse of condition by **unwillingness/inability to perform**

Answer 25

P1 has reasonable grounds to believe P2 will be unable or unwilling to perform

Question 26

Excuse of condition by **substantial performance**

Answer 26

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)}*

Question 27

most courts **won't** apply doctrine of substantial performance if breach of duty was

Answer 27

willfull

Question 28

Doctrine of substantial performance as it relates to sale of goods applicable defense?

Answer 28

generally no because goods generally require **perfect tender**

Question 29

Excuse of condition by K divisiblity

Answer 29

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

Question 30

# list (3) What is a divisible K?

Answer 30

Three tests must be ****_conc_**urrently** met to make a K divisible 1. Performance of each party is **divided** into **two or more** parts 2. Number of parts due from each party is the **same** 3. Each party performs the **equivalent** parts of each part of the divisible K (aka quid pro quo)

Question 31

💡⭐️ When a CL K has a **price** unit immediately consider ⭐️💡

Answer 31

K divisibility!!

Question 32

Contract can be discharged through

Answer 32

1. Performance or tender of performance 2. Occurrence of a condition subsequent 3. Illegality 4. Rescission 5. Partial discharge through contract modification 6. Cancellation 7. Release 8. Substituted Contract 9. Accord and Satisfaction 10. Novation 11. Impossibility, Impracticability, Frustration 12. Account stated 13. Lapse 14. SOL

Question 33

Recission may either be

Answer 33

mutual or unilateral

Question 34

mutual rescission

Answer 34

**express agreement** btwn the parties the agreement to rescission is itself a **binding contract** supported by consideration

Question 35

mutual rescission when a **third-party beneficiary** is involved

Answer 35

if rights have **already vested** → contract **cannot** be discharged by mutual rescission

Question 36

executory contract

Answer 36

a contract that has not yet been fully performed or fully executed → meaning that unperformed obligations remain on **both** sides

Question 37

for a contract to be effectively discharged by **mutual rescission,** the duties of the parties

Answer 37

must be executory on both sides *meaning that both sides have unperformed obligations*

Question 38

unilateral rescission

Answer 38

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 ## Footnote ***_^NOTE: **_{^{if only one party owes an absolute duty to perform (unilateral contract) → cannot have}} **_^mutual **_^rescission*

Question 39

# list (3) what is needed for unilateral rescission

Answer 39

1. offer of **new consideration** by **nonperforming** party 2. elements of **promissory estoppel** (iow detrimental reliance) -**OR-** 3. manifestation of **intent** by the **original offerree** to make a **gift** of the *obligation owed to them*

Question 40

partial discharge by modification of a contract discharges the term of

Answer 40

original K **BUT** does not discharge the ***entire*** contract

Question 41

What is an accord

Answer 41

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

Question 42

what is satisfaction

Answer 42

completion of accord agreement

Question 43

does accord discharge to K

Answer 43

**NO,** it merely suspends. Need accord ***and*** satisfaction to discharge K

Question 44

An accord must generally be supported by

Answer 44

consideration

Question 45

what is a novation

Answer 45

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

Question 46

# list (4) "pain" what is needed for a valid novation

Answer 46

1. **previous** valid K 2. **agreement** amongst all the parties, including new 3. **immediate extinguishment** of old contractual duties 4. **new** valid and enforceable K

Question 47

Does death or incapacity discharge a K by impossibility

Answer 47

**NO** if the services are the type that can be **delegated** to someone else

Question 48

If there has been destruction of subj matter when will rules of discharge **NOT** apply

Answer 48

when ROL has passed to buyer

Question 49

Will a mere increase in cost be sufficient to discharge a K

Answer 49

**NO** unless it changes nature of K

Question 50

What is an account stated

Answer 50

K btwn parties whereby they agree to an amount as the **final balance due**