Public policy, Modification, Conditions, Material Breach, Anticipatory Repudiation (just for nonperf) Flashcards
Public policy-Revenue raising
K still enforceable unless statute/ordinance says otherwise
Public policy-Regulatory
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
Public policy-Covenants not to compete (non ancillary)
Not part of another agreement-Unenforceable
Public policy-Covenants not to compete (ancillary)
Part of another agreement-May or may not be enforceable.
Public policy-Covenants not to compete (ancillary) What courts look at…
- Does covenant protect a legitimate interest of employer? (time, geography, nature of restriction 2. hardship to employee 3. injurious to employee?
Public policy-Covenants not to compete (ancillary) Blue Pencil Rule
Court may strike or rewrite overly broad provisions
Modification-Gen Rule
Consideration required.
Modification- Pre existing duty rule
No consideration if under duty
Modification exceptions
- 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)
Modification-Claim settlements
- 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
Conditions (definition)
An event that is not certain to occur but must occur unless its excused before duty to perform arises
Constructive conditions
- concurrent conditions-performances due at same time 2. constructive condition precedent-performance over time before payment due 3. substantial performance
Express conditions-definition
Conditions that parties put in the K. Must be agreed to and strictly complied with.
Express conditions-words to create
“on the condition that”, “upon”, “provided”, “if and when”, “until”
Express conditions-Types
1.Condition precedent-Event must occur before duty to perform arises 2. Condition subsequent-Event discharges duty that has arisen
Express condition-Exceptions
- Waiver-a voluntary/intentional relinquishment of a known right 2. Forfeiture-loss of compensation after substantial reliance 3. Breach by prevention
Satisfaction as a condition
turns to whether objective or subjective
Paid when paid clause interpreted as
reference for payment- not condition
Who can assert failure of condition
the party who benefits
Breach (definition)
unexcused failure to perform
Material breach
Relieves injured party of duty to perform (if no cure).
Material breach (factors)
extent of performance, harm to breaching party, likelihood of completion, etc
Substantial performance
Breaching party entitled to performance (money for work done) from injured party (minus damages to injured P)
Divisible K
Corresponding pairs; equivalent performances. Entitles breaching party to performance notwithstanding material breach.
Anticipatory Repudiation (def)
Definite and unequivocal statement of intent not to perform or inability to performance before time set for performance.
Anticipatory Repudiation (effect)
Non breaching party can terminate performance and sue for breach immediately or wait until time set for performance
Anticipatory Repudiation (retraction and adequate assurances)
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.
