Performance and Excuse of Nonperformance

Question 1

What is the definition of performance in common law?

Answer 1

a party’s basic duty at common law is to substantially perform all that is called for in the contract

Question 2

What is performance under Article 2?

Answer 2

perfect tender - the delivery and condition of the goods must be exactly as promised in the contract

Question 3

What is the seller’s obligation of tender and delivery in a non-carrier case?

Answer 3

the seller must put and hold conforming goods at the buyer’s disposition for a time sufficient for the buyer to take possession. The seller must give the buyer notice and reasonably necessary to enable her to take possession of the goods. tender at a reasonable hour. place of delivery is the seller’s place of business

Question 4

What is the seller’s obligation of tender and delivery in a carrier case?

Answer 4

the seller need only put the goods ni the hands of a reasonable carrier and make a reasonable contract for their transportation to the buyer and obtain and promptly tender any documents required by the contract or usage of trade or otherwise necessary to enable the buyer to take possession

Question 5

Condition precedent

Answer 5

condition must occur before performance is due

Question 6

Condition concurrent

Answer 6

conditions to occur at the same time

Question 7

Condition subsequent

Answer 7

condition cuts off already existing duty

Question 8

excuse by hinderance or failure to cooperate

Answer 8

if a party that is subject to duty to perform and condition, but prevents that condition from occurring, the condition will be excused if the prevention is wrongful.

Question 9

excuse by actual breach

Answer 9

breach has to be material at common law

Question 10

excuse by anticipatory repudiation

Answer 10

a promisor, prior to the time set for performance of his promise, indicates that he will not perform when the time comes.
elements
1. bilateral contract with unperformed duties on both sides
2. unequivical
3. non repudiating party can either treat as a total repudiation and sue, suspend his own performance and wait to sue, treat it as offer to rescind, or ignore the repudiation and urge the promisor to perform

Question 11

retraction of repudiation

Answer 11

a person may retract repudiation at any time before performance due unless the other party has cancelled, materially changer her position in reliance on the repudiation, or indicates the repudiation final.

Question 12

excuse of condition of substantial performance

Answer 12

minor breach, does not apply if breach willful. inapplicable for sales of goods

Question 13

excuse of condition by divisibility of k

Answer 13

elements:
1. the performance of each party is divided into two or more parts under the k
2. the number of parts due from each party is the same
3. the performance of each party by one party is agreed on as the equivalent of the corresponding part from the other party.
other party can sue for ones not performed on

Question 14

Article 2 installment ks

Answer 14

deliveries in several lots, the price if it can be apportioned may be demanded for each lot unless a contrary intent appears

Question 15

Discharge for impracticability

Answer 15

1) extreme and unreasonable difficulty and/pr expense; and

2) its nonoccurence was a basic assumption of the parties.

Question 16

Example of impractibility for UCC

Answer 16

shortage of raw materials, increase of price over 50%

Question 17

Discharge by frustration

Answer 17

1. supervening act leading to frustration
2. parties did not reasonably foresee the act
3. the purpose of the k has been completely or almost destroyed
4. the purpose of k was realized by both parties at the time of making the k.
   (ex. rented for a wedding, groom dies)

Question 18

discharge by novation

Answer 18

elements

1. a previous valid k
2. an agreement among all parties including the new party
3. the immediate extinguishment of contractual parties and
4. a valid and enforceable new contract.

Question 19

discharge by release

Answer 19

a release or k not to sue will serve to discharge contractual duties, The release or contract not to sue usually must be in writing and supported by new consideration or promissory estoppel.

Question 20

Discharge by accord and satisfaction

Answer 20

accord - an agreement in which one party to an existing k agrees to accept, in lieu of the performance that she is supposed to receive from the other party some other different future performance.
Satisfaction - is the performance of the accord agreement discharge original and accord k.

Question 21

Consideration - accord and satisfaction

Answer 21

has to be consideration of a different type or from a third party. A debtor’s offer to make a partial payment on an existing debt will suffice for an accord and satisfaction if there is some bona fide dispute as to the underlying claim or alteration.

Question 22

Checks tendered payment in full

Answer 22

if monetary claim is subject to a bona fide dispute or the monetary claim is uncertain, an accord can be made in good faith tender and acceptance of a check when that check conspicuously states that the check is tendered in full satisfaction of the debt.