Special Type of Breach

Question 1

What is anticipatory breach?

Answer 1

A breach before performance is due

Question 2

What is the standard for review of anticipatory breach?

Answer 2

Clear, unequivocal repudiation of contract.

Question 3

What is the effect of a declaration of anticipatory breach?

Answer 3

Relieves non-breaching party of duty to perform.

Question 4

What does a non-breaching party need to demonstrate in order to claim anticipatory breach?

Answer 4

That they were ready, willing and able to perform but for other party’s breach.

Question 5

What is a breach of good faith and fair dealing?

Answer 5

When one party performs a contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, damages may be awarded.

Question 6

What are 3 breaches of warranty under the UCC?

Answer 6

1. Breach of Express Warranty
2. Breach of Implied Warranty of Merchantability
3. Breach of Implied Warranty of Fitness for Purpose

Question 7

What elements establish a breach of express warranty?

Answer 7

(a) affirmation/promise (b) that relates to the goods, and
(c) becomes part of the bargain.

Question 8

What are 2 tests for breach of express warranty?

Answer 8

1. Did seller state a fact or opinion?
2. Would a reasonable person in buyer’s position find the statement reliable?

Question 9

What elements are required to establish breach of implied warranty of merchantability?

Answer 9

(1) Seller must be a merchant and (2) represent that the goods are merchantable, (3) P was suffered damage, (4) damage was causal (5) seller was notified.

Question 10

What elements establish merchantability?

Answer 10

(a) goods meet the contract conditions,
(b) if good is fungible (commodity?), of fair or average quality,
(c) fit for ordinary purposes,
(d) among the goods, they are of uniform quality,
(e) are adequately contained & packaged,
(f) conform to promise/affirmations of fact on label.

Question 11

How do you exclude an implied warranty of merchantability?

Answer 11

A contract must include a warranty disclaimer that is clear and conspicuous.

Question 12

What elements establish an implied warranty of fitness for purpose?

Answer 12

If (a) seller knows the purpose for which the buyer requires the goods, and
(b) buyer is relying on seller’s skill/judgement to choose them.

Question 13

How do you exclude an implied warranty of fitness of purpose?

Answer 13

The warranty disclaimer in the writing must be conspicuous.