Public policy, Modification, Conditions, Material Breach, Anticipatory Repudiation (just for nonperf)

Question 1

Public policy-Revenue raising

Answer 1

K still enforceable unless statute/ordinance says otherwise

Question 2

Public policy-Regulatory

Answer 2

Court may refuse to enforce K. EXC: Remoteness doctrine-If offense is remote from conduct protected by statute, court less likely to refuse to enforce

Question 3

Public policy-Covenants not to compete (non ancillary)

Answer 3

Not part of another agreement-Unenforceable

Question 4

Public policy-Covenants not to compete (ancillary)

Answer 4

Part of another agreement-May or may not be enforceable.

Question 5

Public policy-Covenants not to compete (ancillary) What courts look at…

Answer 5

1. Does covenant protect a legitimate interest of employer? (time, geography, nature of restriction 2. hardship to employee 3. injurious to employee?

Question 6

Public policy-Covenants not to compete (ancillary) Blue Pencil Rule

Answer 6

Court may strike or rewrite overly broad provisions

Question 7

Modification-Gen Rule

Answer 7

Consideration required.

Question 8

Modification- Pre existing duty rule

Answer 8

No consideration if under duty

Question 9

Modification exceptions

Answer 9

1. Agreement to rescind existing K and enter new K 2. new duties 3. unforeseen difficulties (not NC) 4. K for sale of goods (good faith req’d)

Question 10

Modification-Claim settlements

Answer 10

1. Liquidated (no dispute): payment of lesser sum not enforceable unless variation in duty. 2. Unliquidated (disputed): “Accord & Satisfaction”-Honest dispute, payment of lesser sum enforceable. If checked marked payment in full and cashed, under protest etc, will not preserve right to seek unpaid amount

Question 11

Conditions (definition)

Answer 11

An event that is not certain to occur but must occur unless its excused before duty to perform arises

Question 12

Constructive conditions

Answer 12

1. concurrent conditions-performances due at same time 2. constructive condition precedent-performance over time before payment due 3. substantial performance

Question 13

Express conditions-definition

Answer 13

Conditions that parties put in the K. Must be agreed to and strictly complied with.

Question 14

Express conditions-words to create

Answer 14

“on the condition that”, “upon”, “provided”, “if and when”, “until”

Question 15

Express conditions-Types

Answer 15

1.Condition precedent-Event must occur before duty to perform arises 2. Condition subsequent-Event discharges duty that has arisen

Question 16

Express condition-Exceptions

Answer 16

1. Waiver-a voluntary/intentional relinquishment of a known right 2. Forfeiture-loss of compensation after substantial reliance 3. Breach by prevention

Question 17

Satisfaction as a condition

Answer 17

turns to whether objective or subjective

Question 18

Paid when paid clause interpreted as

Answer 18

reference for payment- not condition

Question 19

Who can assert failure of condition

Answer 19

the party who benefits

Question 20

Breach (definition)

Answer 20

unexcused failure to perform

Question 21

Material breach

Answer 21

Relieves injured party of duty to perform (if no cure).

Question 22

Material breach (factors)

Answer 22

extent of performance, harm to breaching party, likelihood of completion, etc

Question 23

Substantial performance

Answer 23

Breaching party entitled to performance (money for work done) from injured party (minus damages to injured P)

Question 24

Divisible K

Answer 24

Corresponding pairs; equivalent performances. Entitles breaching party to performance notwithstanding material breach.

Question 25

Anticipatory Repudiation (def)

Answer 25

Definite and unequivocal statement of intent not to perform or inability to performance before time set for performance.

Question 26

Anticipatory Repudiation (effect)

Answer 26

Non breaching party can terminate performance and sue for breach immediately or wait until time set for performance

Question 27

Anticipatory Repudiation (retraction and adequate assurances)

Answer 27

Can be retracted unless reliance or injured party has notified that it’s final. Non breaching party can demand for adequate assurances. In writing, if no response within reasonable time less 30 days, treated as repudiation.