promises and performance Flashcards
Independent Promises
- Performance by each party is not conditioned on the other’s performance.
- Promises are independent of each other if the parties intend that performance by each of them is in no way condition upon performance by the other.
- Breach by one party does not relieve the other of their obligation.
Dependent Promises
Performance by one party depends on the other’s performance.
Three types of dependent promises:
- Promise Precedent
- Promise Subsequent
- Concurrent Promises
Promise Precedent
Must be performed before the other party’s obligation arises. promissory conditions are conditions precedent as well.
Promise Subsequent
Terminates a duty if not met by a deadline (e.g., insurance duty to report). Must give notice, and w/out it the duty is terminated
Concurrent Promises
Simultaneous performance by both parties is required.
Most contracts assume concurrent promises unless explicitly stated otherwise.
Courts default to dependent promises to ensure fairness.
Where all or part of the performance is to be exchanged can be exchanged simultaneously
then they are due simultaneously unless the language indicates other wise.
, the longer-duty party performs
first If no explicit order in contract,
Substantial performance prevents
a material breach.
If a part of the contract is considered to be a promise rather than a condition
Then substantial performance is allowed.
A defense to a promise not being fully completed
Doctrine of Substantial Performance
Doctrine of Substantial Performance
I-D * I-C* F-F F-C I DICCF
- injured party deprived of benefit
- injured can be compensated
- failing party will suffer forfeiture
- failing party will cure the failure
- intent or innocent
substantial performance we are considering the
factors - so not all necessary
Perfect tender rule:
a buyer may:
(a) reject the whole or (b) accept the whole or (c ) accept any commercial unity or units and reject the rest
limitations to perfect tender rule
- a buyer may fix the noncorforminitty before the time of performance comes, the seller must also notify the buyer.
- If the seller has a reasonable ground for belief that alothough what he is selling is nonforming the buyer will accept it. Can be accepted either with or without a deal, the seller has to seasonably notify the buyer that they thought they would accept it, they have to ask for a reasonable time to fix the nonconforming tender.
