Performance Issues

Question 1

Interpretation of Terms

Answer 1

Courts will construe the contract agains the drafter, attach ordinary meanings to words, look at custom and usage in the industry, and look at the cours of dealing between the parties

Question 2

Mistake/Ambiguity

Answer 2

Contract terms subject to latent reasonable different meanings; there will be no contract if both parties have attached different meanings to the terms (unless the parties should have known)

Question 3

Parole Evidence Rule

Answer 3

Prior or contemporaneous statements are inadmissible to alter the terms of the writing if the parties have reduced their agreement to a writing and the writing is intended as a final integration unless there are formation defects, condition precedent, ambiguous terms, collateral agreements, subsequent modifications, etc.

Question 4

Complete Integration

Answer 4

One contract is adopted by the parties as a complete and exclusive statement of terms of agreement and discharges prior agreements within scope

Question 5

Partial Integration

Answer 5

A final expression of one or more terms but not an expression of all terms only discharges prior agreements only to the extent that prior agreements are inconsistent with the written agreement

Question 6

Common Law Modification

Answer 6

The modification must be supported by consideration; in limited cases, a promise modifying a duty not fully performed is binding if the modification is “fair and equitable” in view of “unanticipated circumstances” when contract was made

Question 7

UCC Modification

Answer 7

No consideration is needed as long as the modification was made in good faith

Question 8

Express Warranty

Answer 8

Affirmative facts or promises that form the basis of the bargain that causes plaintiff’s injury

Question 9

Implied Warranty of Merchantability

Answer 9

The product is average acceptable quality and fit for ordinary purposes

Question 10

Implied Warranty of Fitness

Answer 10

The product is fit for particular purposes and the buyer relies

Question 11

Assignments

Answer 11

You can assign the rights to receive performance under a contract if there is: (1) assent by assignee; (2) a present contract; and (3) if there is no material alternation of duties; assignments are valid unless they materially alter the duties under the contract or are prohibited by law

Question 12

Delegations

Answer 12

Delegations of performance duties under contract are valid unless duties involve personal judgment/skill or change the obligations/risk

Question 13

Conditions

Answer 13

An event the occurrence or non-occurrence will create, limit, or extinguish an absolute duty to perform

Question 14

Condition Precedent

Answer 14

One that must occur prior to the absolute duty

Question 15

Condition Concurrent

Answer 15

Due at the same time

Question 16

Condition Subsequent

Answer 16

Event cuts off absolute duty

Question 17

Satisfaction of Conditions

Answer 17

Express conditions require strict compliance with constructive and implied conditions require substantial compliance

Question 18

Implied Conditions

Answer 18

Good faith, duty not to hinder performance, duty to cooperate, fair dealing, etc.

Question 19

Excused Conditions

Answer 19

Waiver if voluntarily and knowingly relinquish right; retraction is permissible unless estopped by reliance or paid consideration

Question 20

Discharged Conditions

Answer 20

Frustration of purpose, rescission, accord & satisfaction, novation, impossibility, and impracticability

Question 21

Frustration of Purpose

Answer 21

Unforeseen event that destroys the purpose/value of the contract

Question 22

Accord & Satisfaction

Answer 22

Accord - new agreement intended as a compromise

Satisfaction - performance of compromise agreement; can sure under original or new agreement until performed

Question 23

Novation

Answer 23

Agreement by all parties to extinguish original contractual duties and replace them with new party/contract

Question 24

Impossibility

Answer 24

Unforeseen event makes performance objectively impossible ( e.g., death or physical incapacity, illegality, destruction of subject matter, etc.)

Question 25

Impracticability

Answer 25

Unforeseen event that makes performance commercially extremely difficult; duty suspended as long as the event exists

Question 26

Anticipatory Repudiation

Answer 26

Definite and unequivocal expression of intent not to perform (only if both duties executory)

Question 27

Anticipatory Repudiation Remedies

Answer 27

Sue immediately, offer to rescind and treat as discharged, suspend performance and wait, or ignore and urge

Question 28

Anticipatory Repudiation Assurances

Answer 28

Seek in writing if reasonable grounds for insecurity

Question 29

Breach

Answer 29

Unjustified failure to perform absolute duty

Question 30

Material Breach

Answer 30

Substantial benefit of the bargain

Question 31

Perfect Tender Rule (UCC)

Answer 31

Goods must conform in all respects to contract unless: seller limited right to cure, installment contract, or seller shipment as accommodation

Question 32

Seller Limited Right to Cure

Answer 32

Right to cure if notice and new tender within time for performance or if reasonable belief cure shipment would be acceptable to buyer after time for performance

Question 33

Seller Shipment as Accommodation

Answer 33

Acts as a counteroffer instead of acceptance based on shipping non-conforming goods if sent as an accommodation