Performance, Breach, and Discharge

Question 1

What is Risk of Loss

Answer 1

if something happens and its damaged

Question 2

Risk of loss when Seller is a merchant

Answer 2

There is not a carrier, im literally bringing the goods to you.

the risk of loss is on the seller until the buyer takes possession.

Question 3

Risk of loss when Seller is not a merchant

Answer 3

If im (seller) not a merchant then the risk of loss is on me until I tender, make the goods available to you.

Question 4

Risk of loss When there is a carrier (UPS guy, ship ect)

Answer 4

Shipment contract
(default rule): The risk of loss is on the seller until he gives them to the carrier then its on the buyer.

Destination contract
The risk of loss is on the seller until it gets to the actual location (destination)

Question 5

FOB Seller

Answer 5

Shipment contract

Question 6

FOB any other location/ anything

Answer 6

Destination contract

Question 7

Requirements Contract

Answer 7

(all the widgets I have): Good faith. Your going to buy all of something but I can only give you so many. As long as I acted in good faith then im good

Question 8

Contracts Modification

Answer 8

At CL: Need new consideration

UCC: Need good faith

A clause prohibiting oral modifications are valid.

Question 9

Modifications can be oral or written?

Answer 9

yes

Question 10

Mutual Modificaton

Answer 10

We can mutually modify the orig terms as long as its fair and reasonable.

Question 11

3 Conditions you can have in a contract

Answer 11

1. Condition Precedent
2. Condition Concurrent
3. Condition Subsequent

Question 12

Condition Precedent

Answer 12

The event has to happ prior to the performance

Question 13

Condition Concurrent

Answer 13

The condition of the event is going to happen at the time of the contract performance.

Question 14

Condition Subsequent

Answer 14

Something is going to happen after the contract

If the condition is not met then I don’t have to perform

Question 15

Exceptions to contract conditions- When must I perform anyway

Answer 15

 When there is a waiver of condition: they say forget about it you don’t have to do the condition and now you must go ahead and perform regularly.

Bad faith: if one party acts in bad faith then they must perform. Did they even try to do the condition

Avoiding forfeiture: if a party would suffer a great loss or forfeiture, the condition would be excused and you have to perform anyway.

Question 16

Is time of the essence?

Answer 16

Generally time is not of the essence

Question 17

Non conforming goods

Answer 17

If I deliver non conforming goods to you the buyer may reject, accept, reject in part, or accept in part.

If you reject must do in reasonable amount of time.

If you accept the non conforming goods you will pay me the amount of the goods in the original contract.

If I send you stuff that is wrong but I had reasonable ground to think you would accept the non conforming goods, then seller can fix that delivery if I give reasonable notice to cure and if I make a conforming delivery in a reasonably amount of time.

If I deliver the non conforming goods to you prior to the delivery date, the seller can fix if the seller gives reasonable notice and delivers the goods on time. You must give me the chance to fix it.

Question 18

Installment contract

Answer 18

Delivering goods to you in several different shipments.

If one of the installments is nonconforming. If only 1 it will not mean a total breach of K. If it effects that installment and If cant fix it then you can reject that installment. If I can fix it then you have to give me the right to send you the correct stuff.

If that 1 installment would materially impair the value of the whole contract then you can hold the seller in total breach.

If seller says its an accommodation then you can choose to accept or reject.

Question 19

Impracticability

Answer 19

Situation with unforeseen circumstances which now makes the perf of the contract has become way too hard/ expensive and can be discharged from the contact.

Some change not enough, change has to be so big that I prob wouldn’t have entered into the contract in the first place.

Question 20

Impossibility

Answer 20

Objectively nobody can perform.

Exception: Temporary impossibility: impossible only for short time then still have to perform once the impossibility is gone its temporary.

Impossibility will not apply if the parties prepared for that event (its foreseeable).

Question 21

Frustration of purpose

Answer 21

if the core reason that we entered into the contract has now become frustrated/removed then I can be discharged from performance as well.

Question 22

Anticipatory repudiation

Answer 22

Unequivocally refuses to perform

Question 23

When can you demand assurances

Answer 23

When you are worried I won’t perform

If I respond to you in a reasonable amount of time you must then wait for me to show up and give me a shot. If I don’t respond and you never hear from me you can look for someone else.

UCC demand for assurance have to be in writing and 30 days is reasonable amount of time for responding to the assurances.

Question 24

If I do repudiate, I can retract the repudiation unless

Answer 24

1. The other party has sued you already
2. If the other party has accepted the repudiation or
3. if the other party relied on the repudiation