Performance, Modification, and Excuse Flashcards
UCC: seller’s general performance obligation
transfer and deliver
UCC: buyer’s general performance obligation
inspect goods
tender payment
S obligated to put goods in the possession of a carrier, provide B with docs needed to get them, notify B that they’ve been shipped
shipment K
presumed
risk ships to B when the goods are delivered to the carrier
S agreed to tender the goods at a particular place
destination K
FOB
free on board: FOB point is the delivery point
the place where the risk transfers from S to B
FAS
free alongside
risk shifts to B when the goods are delivered at the destination
if goods are held by a bailee to be delivered w/o being moved, risk passes to B when
- B receives negot doc covering the goods
- bailee acknowledges B’s rt to possess the goods
- B rec nonnegot doc of title or other direction to deliver goods to B, obce B has had a reasonable time to present the doc or direction to the bailee
in not a shipment case, where S is a merchant, risk of loss passes to B when
B receives (takes phys possession of) the goods
in not a shipment K, where S is not a merchant, risk of loss passes to B
upon tender of delivery
if the seller breaches the K by making nonconforming tender or delivery, S keeps risk until
cure or acceptance
Modification: CL
preexisting duty rule
no modification if no consideration being offered for the mod
a promise to increase comp under an existing K is enforceable if
as a mutual mod
- both parties agree to a performance that’s diff from the one originally promised
- diff in performance is not a mere pretense
Where a promise of increased compensation is given in exchange for a performance, and that performance is rendered substantially more burdensome than anticipated by the parties when they entered the K,
unforseen circ= preexisting duty rule doesn’t apply
when is mod permitted under the UCC
no consideration needed
good faith test: can[‘t be a pretext to hide a bad faith change in terms
when there’s a “no oral modifications” clause in a K, CL & UCC?
CL: used to be totally invalid, cts will prob enforce them where a party has reasonably relied on the moral mod
UCC: presumptively valid , but may be enforceable if the disadvantaged party relies on the mod
unilateral mistake
doesn’t matter, unless other party had reason to know or it’s cause of a clerical error
mutual mistake
voidable by the disadvantaged party where
- mistaken fact is essential to the K
- both parties were mistaken
- disadvantaged party didnt bear the risk of mistake under the K
doctrine of impossibility requires
objectively impossible performance
occurrence of contingency not known to the parties at the time of contracting
doctrine of impracticability requires
caused by some unforeseen contingency
risk was neither assumed nor allocated by the parties
increase in cost of performance qould be far beyond what either party anticipated
frustration of purpose requires
party’s princ purpose in entering the K is frustrated
substantial frustration
non-occurrence of the event precipitating frustration was a basic assumption of the K
recission- consideration for the change is
discharge of the other’s duties
accord and satisfaction
accord: K under which the obligee promises to accept substituted performance in satisfaction of the obligor’s original duty
- satisfaction: performance of the accord
- consideration required
- less $ only ok if there’s a GF dispute as to the amnt owed
if 1 party anticipatorily repudiates, the other party can
imemdiately treat it as a breach, entitled to same rights and remedies. Can immediately cancel the K OR bring an action for spec perf
adequate assurance of performance: CL And UCC
UCC: in writing
- other party can suspend his performance if no response within 30d; doesn’t provide reasonable assurance; suspension is commerically reasonable/ hasn’t received the agreed-upon return
- failure to respond = breach
CL: oral comm or in writing
-same as above except for the 30d thing
promissory condition
K conditioned on the occurrence of the promised perf by the other party
ex: publisher’s duty of payment expressly conditioned on B’s timely delivery of the manuscript.
pure condition
K performance conditioned on the occurrence of events beyond the control of either party. ex “weather permitting”
Order of performance: CL
- if 1 party’s performance requires a period of time to be completed and the others does not, the performance over time is a condition to the other one
- if they can be done simultaneously, then theperformances are treated as concurrent conditions of each other
order of performance: CL
if it doesn’t say in the K, delivery & payment are treated as concurrent, so each perf is conditioned on the performance of the other
CL: failure of express condition
- discharges other party’s obligation
- if no clear conditional lang, express cond may be established by trade usage, course of dealing, or course of performance
CL: excuse of express condition
- waiver: A (guy who would have been discharged from performing ) may waive the right to discharge and perform anyway.
- -BF conduct: beneficiary can excuse, then other party’s performance becomes absolute (B getting financing is an exp cond, B fails to apply for financing. B has excused that cond and now has to perform)-
-ct may excuse condition to avoid forfeiture (will consider factors)
CL: failure of implied conditions
- material breach: aggreived party is free to walk away
- substantial performance: aggreived party may still sue for damages to remedy the breach.
- extent to which the aggreived party will be deprived of the benefit, which he reasonably expected under the terms of the K
- extent to which the aggreived party can adequately be compensated via damages for the defective performance
- extent to which the breaching party will suffer forfeiture if a material breach is found
- extent to which the breach was willful or in bad faith
- likelihood that the breaching party will cure his failure within a reasonable time and in a manner consistent w the reasonable purposes of the K
CL: failure of implied condition: material breach
total breach
-partial breach: damages only based on the injured party’s remaining rights to performance (all non-material breaches)
CL: failed condition: if it can’t be excused
division
quantum meruit
UCC: S fails to make perfect tender: S’s options
- reject the goods within a reasonable time, notify S
- accept the goods after inspection and must pay K price but may seek damages. may revoke acceptance
- reject part and accept part
