Performance & Excuse of Nonperformance Flashcards
Under common law, a party’s basic performance duty is to…
substantially perform all that is called for in the contract.
Article II generally requires a performance of…
perfect tender.
Installment contracts require…
a delivery of goods in separate installments over a specified period.
Under Article II, a buyer has a reasonable opportunity to…
inspect the goods within a reasonable time.
Conditions do not create their own obligations, instead, they …
limit obligations created by contract language.
(True/False): Express conditions must be perfectly satisfied.
TRUE.
The failure of a condition to a contract is not a breach of contract, but it….
discharges the liability of the promisor whose obligations on the conditional performance never mature.
Satisfaction performance conditions are construed to the…
reasonable person standard.
(except in situations of personal taste)
A condition precedent is one that must occur…
before an absolute duty of immediate performance arises in the other party.
To waive a condition without giving consideration, the condition must be…
ancillary or collateral to the main subject and purpose of the contract to be effective.
In the case of an anticipatory repudiation, the nonrepudiating party has (4) alternatives:
- Treat the anticipatory repudiation as a total repudiation and sue immediately;
- Suspend their own performance and wait to sue until the performance date;
- Treat the repudiation as an offer to resind and treat the contract as discharged, or
- Ignore the repudiation and urge the prominsor to perform.
A repudiating party may withdraw their repudiation unless the other party has:
- Cancelled;
- Materially changed their position in reliance on the repudiation; or
- Otherwise indicated they consider the repudiaiton final.
Prospective failure of a condition is distinguishable from repudiation because…
repudiation must be unequivocal, whereas prospective falure merely raises doubts that a party will perform.
A prospective failure allows the innocent party to suspend further performance until…
they receive adequate assurances that performance will be forthcoming.
assurance not received = anticipatory repudiation
Recission is…
a party’s mutual agreement to cancel a contract.
(parties must have at least some performance remaining to effect)
If a contract is subsequently modified by the paties, this will serve to…
discharge the terms of the original contract that are the subject of the modification.
(will not serve to discharge the entire contract)
An accord is an agreement to…
accept a different performance to satisfy an existing duty.
An accord, taken alone, won’t discharge the prior contract, it merely…
suspends the right to enforce it with the terms of the accord contract.
Satisfaction of the performance of the accord agreement effects to discharge…
the original contract and the accord contract.
Look for these words to determine if an accord + satisfaction situation is present:
“If…. then”
A novation is an agreement to…
substitute a new party for an existing party.
The elements for a valid nocation are:
(1) a previous valid contract; and
(2) an agreement among all parties, including the new party to the new contract;
(3) the immediate extinguishment of contractual duties as between the original contracting parties; and
(4) a valid and enforceable new contract.
Death or the physical incapacity of a person necessary to effectuate the contract serves to…
discharge it.
Impossibility must be “objective,” such that …
the duties of the contract could not be performed by anybody.
