Performance, Breach, and Discharge Flashcards
Discharge
Termination of a contractual duty, and causes a binding promise to cease to be binding
Four Types of Discharge
1) Performance
2) Material Breach
3) Agreement
4) Illegality
Condition
event whose happening or not happening affects a duty of performance under a contract
Express Condition
- explicitly put forth in language
- condition must fully and literally occur
Implied In Fact Condition
- inferred from terms of contract, nature of transaction, or conduct of parties
- condition must fully and literally occur
Implied in Law Condition
(Constructive Condition)
1) Not contained in language of contract
2) only needs to be substantially performed
Condition Concurrent
mutual duties of performance are to take place simultaneously
Condition Precedent
event must occur before performance is due
Condition Subsequent
an event terminates an existing duty
Subjective Satisfaction
relates to a matter of personal taste, opinion or judgement (personal satisfaction need not be reasonable)
Objective Satisfaction
relates to mechanical fitness or utility (would a reasonable person be satisfied?)
Third Party Satisfaction
When contracting party relies on a third party ‘expert’s’ approval before transferring benefit and carrying out contract
Discharge by Performance
Promisor exactly performs duty, thus no longer subject to said duty
Substantial Performance
party performs in good faith to best of their ability, not complete but SUBSTANTIALLY clsoe
Tender
and offer made by one party to the other to perform his/her obligation
Result of a rejected tender?
BREACH
treated as repudiation, excusing tendering party from further duty
Material Breach
unjustified failure to perform substantially the obligations promised
Breach
wrongful failure to perform contract terms
Prevention in Performance
one party’s substantial interference of performance by the other
~~non-breaching party is excused~~
Anticipatory Repudiation
notification from one party to the other of his/her intention not to perform and of impeding breach of contract
~~nonbreaching party can sue now or later~~
Material Altercation
unauthorized change of any material terms of a written contract ~~discharges entire contract~~
Substituted Contract
new contract accepted by both parties in satisfaction of duties in original contract
Accord and Satisfaction
tender of lessor performance in full satisfaction of debt in good faith dispute ~~acceptance excuses recovery of full debt~~
Novation
all three parties consent to the substitution of one party for one of the original two parties in a contract. the exiting party no longer has any rights or responsibilities
Subjective Impossibility
party unable to perform because of financial reasons or incompetence ~~inexcusable from liability for breach~~
Objective Impossibility
Situation in which no one could render performance ~~excusable~~
Subsequent Illegality
performance is illegal
Frustration of Purpose
party’s principal purpose is frustrated by no fault of the party but by occurrence of an event whose nonoccurence was assumed
Commercial Impracticability
unjust or unforeseen hardship
performance would cause bankruptcy or sever injury
~~excusable non-performance~~
