Performance & Remedies Flashcards
T/F: Implied in every contract are certain conditions that must transpire for performance to occur; otherwise, the duty to perform can be discharged.
True
List the various types of conditions that can exist in contract sales.
- Precedent
- Subsequent
- Concurrent
What is a precedent condition?
Something that must be present or occur before a party has a duty to perform.
What is a subsequent condition?
Something that must be present or occur after a duty to perform has arisen.
What is a concurrent condition?
Each party’s duty to perform is dependent upon the other party’s absolute duty to perform at the same time.
What happens when a condition precedent fails?
The duty to perform is discharged.
List the type of contractual discharge that can occur by agreement or party action.
- Release
- Waiver
- Mutual rescission
- Novation
- Accord & satisfaction
What is a novation?
New party is substituted for one of the original parties.
What is an accord and satisfaction?
An agreement where the original contract can be satisfied by the original performance or by a different performance.
List the ways a contractual obligation can be discharged by operation of law?
- Statute of limitations
- Bankruptcy
- Impossible or impractical
- Material alteration
List the ways a contract can be considered impossible or impractical.
- Illegality
- Death or insanity
- Destruction of subject matter
- Commercial impracticability
Define waiver.
Relinquishment of a right due to a party’s breach.
Define mutual rescission.
Mutual agreement to discharge contractual obligations.
Define rescission.
The undoing of a contract.
List the types of damages available for remedies.
- Nominal
- Compensatory
- Punitive
- Liquidated
- Consequential
Define consequential damages.
Foreseeable loss known by the breaching party. E.g., penalties.
Define liquidated damages.
Specific sum is to be paid when there is a breach of contract.
What is mitigation of damages?
When a breach takes place, the law usually imposes on the non-breaching party to take actions to mitigate (reduce) the amount of damages owed.
Other than damages, what are the remedies for contract breaches?
- Specific performance
- Rescission & restitution
- Quasi-contract recovery
What is a quasi-contract recovery?
Remedy to give a reasonable value benefit to 1 party and avoid unjust enrichment. E.g., a person who worked 1 month and then was released from his employment agreement. He is entitled to 1 month worth of compensation.
T/F: The running of the statute of limitations bars access to judicial remedies.
True
T/F: Assignment of rights discharges a party from performance.
False
T/F: Death of the party who is to receive the services discharges the party’s duties.
False. Can still perform on behalf of their estate.
