Performance, Breach and Discharge

Question 1

Anticipatory Repudiation occurs when a contracting party-

Answer 1

Clearly and unequivocally, by words or actions, indicates that they will not perform. A mere expression of doubt regarding one’s ability to perform or request to modify the K does not suffice.

Question 2

What can a non-repudiating party do upon repudiation by the other party?

Answer 2

They non-rep. party can suspend their own performance and either:
1. treat the repudiation as a breach and sue.

OR

2. ignore it and demand performance.

Question 3

In an installment K for the sale of goods, when must the buyer accept a nonconforming shipment?

Answer 3

If the seller gives adequate assurances that they will cure the defect. The buyer CANNOT cancel the rest of the K unless the non-conforming shipment substantially impairs the value of the whole K.

Question 4

How is satisfaction measured in a contract?

Answer 4

Satisfaction is measured objectively.

But when the condition involves a parties aesthetic tastes, the condition is only met if that party is personally satisfied with the other party’s performance, provided that any dissatisfaction is honest and in good faith.

Question 5

When is the defense of impracticability available?

Answer 5

When 1. an unanticipated event makes performance impracticable,
2. non-occurance of the the event was a basic assumption of the contract, AND
3. the party seeking discharge is not at fault.

Non-extraordinary increases in the cost of performance do not make performance impracticable.

Question 6

What is a condition precedent? Who has to prove it?

Answer 6

It DELAYS performance until a specified event occurs and requires the Plaintiff to prove the event occurred to prevail.

“If you let someone precede then you are delayed.”

Question 7

What is a condition subsequent? who has to prove it?

Answer 7

It EXCUSES performance once a spec. event occurs and requires the D to prove that the event occurred to avoid liability.