Performance, Modification, and Excuse

Question 1

UCC: seller’s general performance obligation

Answer 1

transfer and deliver

Question 2

UCC: buyer’s general performance obligation

Answer 2

inspect goods

tender payment

Question 3

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

Answer 3

shipment K
presumed
risk ships to B when the goods are delivered to the carrier

Question 4

S agreed to tender the goods at a particular place

Answer 4

destination K

Question 5

FOB

Answer 5

free on board: FOB point is the delivery point

the place where the risk transfers from S to B

Question 6

FAS

Answer 6

free alongside

risk shifts to B when the goods are delivered at the destination

Question 7

if goods are held by a bailee to be delivered w/o being moved, risk passes to B when

Answer 7

• 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

Question 8

in not a shipment case, where S is a merchant, risk of loss passes to B when

Answer 8

B receives (takes phys possession of) the goods

Question 9

in not a shipment K, where S is not a merchant, risk of loss passes to B

Answer 9

upon tender of delivery

Question 10

if the seller breaches the K by making nonconforming tender or delivery, S keeps risk until

Answer 10

cure or acceptance

Question 11

Modification: CL

Answer 11

preexisting duty rule

no modification if no consideration being offered for the mod

Question 12

a promise to increase comp under an existing K is enforceable if

Answer 12

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

Question 13

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,

Answer 13

unforseen circ= preexisting duty rule doesn’t apply

Question 14

when is mod permitted under the UCC

Answer 14

no consideration needed

good faith test: can[‘t be a pretext to hide a bad faith change in terms

Question 15

when there’s a “no oral modifications” clause in a K, CL & UCC?

Answer 15

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

Question 16

unilateral mistake

Answer 16

doesn’t matter, unless other party had reason to know or it’s cause of a clerical error

Question 17

mutual mistake

Answer 17

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

Question 18

doctrine of impossibility requires

Answer 18

objectively impossible performance

occurrence of contingency not known to the parties at the time of contracting

Question 19

doctrine of impracticability requires

Answer 19

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

Question 20

frustration of purpose requires

Answer 20

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

Question 21

recission- consideration for the change is

Answer 21

discharge of the other’s duties

Question 22

accord and satisfaction

Answer 22

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

Question 23

if 1 party anticipatorily repudiates, the other party can

Answer 23

imemdiately treat it as a breach, entitled to same rights and remedies. Can immediately cancel the K OR bring an action for spec perf

Question 24

adequate assurance of performance: CL And UCC

Answer 24

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

Question 25

promissory condition

Answer 25

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.

Question 26

pure condition

Answer 26

K performance conditioned on the occurrence of events beyond the control of either party. ex “weather permitting”

Question 27

Order of performance: CL

Answer 27

• 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

Question 28

order of performance: CL

Answer 28

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

Question 29

CL: failure of express condition

Answer 29

• 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

Question 30

CL: excuse of express condition

Answer 30

• 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)

Question 31

CL: failure of implied conditions

Answer 31

• 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

Question 32

CL: failure of implied condition: material breach

Answer 32

total breach

-partial breach: damages only based on the injured party’s remaining rights to performance (all non-material breaches)

Question 33

CL: failed condition: if it can’t be excused

Answer 33

division

quantum meruit

Question 34

UCC: S fails to make perfect tender: S’s options

Answer 34

• 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