VI. Excuse of Non-Performance

Question 1

Other Party’s Material Breach

Answer 1

• Damages can be recovered for any breach
• Only a material breach by 1 guy excuses the other guy from performing
• Whether a breach is material is a fact question (and so whether a breach is material is not likely to be a bar exam Q.)

Question 2

Other Party’s Anticipatory Repudiation

Answer 2

• Unequivocal words or conduct
• Watch for whether non-repudiating party had already performed to determine when there can be recovery of money damages

Question 3

Nonoccurrence of Express Condition

Answer 3

• Determining whether there is an express condition:
  
  • Modifies other K duties, not create new duties
  • IF, ONLY IF, PROVIDED THAT, SO LONG, IN THE EVENT THAT, UNLESS, WHEN, UNTIL, AND ON CONDITION THAT
    
    • IF in doubt, NOT a condition
• Strict compliance test for satisfying condition
• Excuse of condition: Focus on word or conduct of person protected by condition:
  
  • Waiver
  • Prevention

Question 4

Later Agreement

Answer 4

Accord AND Satisfaction

• IF no satisfaction, liability under accord OR original deal
• Distinguish substituted agreement from accord & satisfaction
• Novation:
  
  • Mutally agreed upon replacement party that excuses
  • Distinguish novation from delegation

Question 5

Later Occurrences that Affect the ABILITY to Perform or MUTUALLY UNDERSTOOD PURPOSE of Performance

Answer 5

• Death of party generally NOT an excuse
• Later illegality of performance of purpose generally an excuse
• Destruction of subject matter of K is 2-part reading comprehension test
  
  • (1) Reading facts, what is the K performance obligation?
  • (2) Comprehending facts, HOW does later occurence affect ability to perform?
    
    • Later performance becoming more expensive is NO excuse