TIME/Breach/financing Flashcards
a breach is MATERIAL if
breach goes to the essence of the contract
Material breach entitles injured party to…..
damages and
excuses the injured party from having to perform obligations
A non-material breach entitles injured party to…
damages BUT
must still perform his obligations
how to transform a non-material to a material term
make TIME of the essence
the non-breaching party is entitle to damages for ______breach of contract that causes an injury.
EVERY
the time of performance will NOT be material when
time is not of the essence
*each party has reas. period of time after deadline to perform before breach becomes material
must the non-breaching party still perform when time is not of the essence
yes
&the breaching party will still owe damages
Which party can make time of the essence AFTER the execution of a K?
Either party!
must be reas & inform the other party that on-time perf. is expected
Why is TIme of essence clause a two-edged sword
?
either party can get out
ex. flat tire can result in breach
mortgage
the conveyance of land to secure payment of a debt
law day
date on which the final payment of the morgage is due
mortgagor
party obtaining financing
mortgagee
party providing the money
estate type
the morgagee receives a defeasible fee estate (mortgage is phrases as a fee simple determinable
default
a failure by the morgagor to pay the mortgages on the law day
historic effect of a default
all the morgagor’s interest in land was extinguished
modern effect of a default
initiates the “equity of redemption.”
equity of redemption
the right of the mortgagor to pay off the debt after default to recover the property.
waiver of equitable redemption
an agreement by the mortgagor to surrender the equity in advance (any such waiver is void)
Foreclosure
a termination of the equity of redemption
types of foreclosure
- judicial or 2. Private Power
types of judicial foreclosure
by sale- decree ordering sale of the property w/ the proceeds used first to satisfy thet morgages and if a balance remains, the mortgagor
strict- a decree giving the mortgagee full title and extinguishing the debt
private power foreclosure
the authority given in the mortgage for the mortgagee to sell the property at auction w/out judicial action
mortgage note
a promissory note executed at the time the mortgage is given
what provides the obligation that the mortgage secures
the mortgage note
what makes the mortgagor individually responsible for repaying the amount borrowed
the mortgage note
can the balance be PREPAID?
no. unless the mortgage specifically authorizes it
today most all jsuris dont auth it
Marketable title is
“readily subject to resale and free from reasonable doubt.”
what is marketable title NOT (better approach)
refer to standards of the bar or avoid all together and subsitute insurable title
What can purchaser do to address a title problem
- walk away from deal and seek damages
- accept defective title and bring action to quiet title hoping that defect can be cured
- put the deal ON HOLD and allow the SELLER to bring the quiet title action
is unmarketable title bad title?
no, not same
a utility easement
defective title, but still marketable
Title by adverse possession is “good” but ……
NOT marketable (until confirmed by a court judgment)
