PERFORMANCE, BREACH, EXCUSE Flashcards
IMPLIED CONDITION
- MUTUAL AND INDEPENDENT PROMISES
- SEQUENTIAL DEPENDENT PROMISES
- SIMULTANEOUS DEPENDENT PROMISES
WHAT WOULD HAPPEN IF THE IMPLIED CONDITION HAD TO BE TREATED THE SAME WAY AS EXPRESS CONDITIONS?
The promise would have to be performed perfectly or the conditioned performance would not be due.
Perfect ender Rule
If the goods or the tender of delivery fail in any way to conform to the contract, the buyer may:
1. accept the whole,
2. refuse the whole,
3. accept in part, and refuse the rest.
different from what the court determined in the Jocobs case: if Jacobs would have substantially perfumed, then Kent would have to pay.
Substantial Performance v. Material Breach
Substantial Performance focuses on how may the performing party has done and whether it is enough to satisfy the condition.
Material Breach focuses on how much the performing party has failed to do and whether it is enough to not satisfy the condition. Khitere v Bell - porcelain on gold v. all porcelain
How do you determine whether performance is substantial?
Aggregate test factors:
1. the extend to which the injured party will be deprived of the benefit that he has reasonably expected,
2. the extend to with the injured party will be adequately compensated for the deprived benefit,
3. the extend to which the party that failed to perform will suffer forfeiture (what he pid already or not?)
4. the likelihood the party that failed to perform will cure his failure,
5. the extend of the behavior of the party that failed to perform to adhere to the standards of good faith and fair dealings.
Partial or total breach
in general for ANY BREACH, the aggrieved party as the right to a remedy.
for a MATERIAL BREACH, the agreed party has the right to remedy and to suspend the contract until the breaching party has substantially performed, within a reasonable time. If the breaching party has a right to cure, the this will result in partial breach. If the breaching party has no right to cure, then this will result in a total breach and the aggrieved party has the right to cancel.
how do you determine if a breach is partial or total?
same facts in restatement 241
Repudiation + Anticipatory Repudiation
R 250 - is when a party refuses to perform before is performance is due. It must be an absolute and unequivocal refusal or a distinct and positive statement not to perform. Court will judge using an objective standard.
Anticipatory repudiation: repudiation that occurs before the date on which the contract performance is due.
What may an aggrieved party do after the repudiation?
- he may await a commercially reasonable time for performance from the breaching party,
- resort to any remedy for breach,
- suspend his own performance.
what may insecure parties do?
seek insurance from the other party in regards of the repudiating party’s intention or ability to perform, include contract clauses and demand for a right of assurance.
methods of repudiation
it can be done by words or deed, the promisor let the promisee know that he cannot or will not perform. Generally, repudiation cannot be by silence or inaction.
- can the repudiating party retract?
- How can it be done?
- consequence of retracting repudiation?
- yes, the repudiating party may retract unless the aggrieved party has cancelled or materially modified her position or otherwise indicated that she considers the repudiation final.
- Retraction can be done in any manner as long as it is clear and it is communicated to the aggrieved party that he is retracting and intends to perform.
- it will reinstate the repudiating party’s right under the contract with due excuse.
