VII. Breach

Question 1

When does a breach occur

Answer 1

• If
  
  • 1) the promisor is under an absolute duty to perfom AND
  • 2) this absolute duty of perofrmance has not been discharged
• Party suing must show that they are willing and able to perform but for the breach
  *

Question 2

Effect of Breach (Common Law)

Answer 2

• Minor breach: obligee gains substantial benefit of baragin despite defect.
  
  • Does not releive of duties to perform–just damages for the minor breach
• Material Breach: does not receive the substantial benefit. May treat as end of K and sue for damages
• Minor couples with anticipatory repudication: may treat as material breach–meaning may sue on it.
• Material breach of divisible K: substnatial performance of a divsible part.

Question 3

Determining Materiality of Breach (Common Law)

Answer 3

1. amount of benefit received by nonbreacher
2. adeqaucy of compensation for damages
3. extent of part perofrmance by breaching party
4. hardship to breaching party
5. negligent or willfulness of breach
6. likelihood that breacher will perform rest of K

Unlikely to show up on MBE–maybe an essay answer

Question 4

Timeliness of Perofrmance (Common Law)

Answer 4

Generally not a breach if personam is delayed unles timeliness part of K or is of the essence

Question 5

Perfect Tender Rule-Sale of Goods

Answer 5

• IF goods or thier delivery fail to conform to the K in any way, buyer may
  
  • reject all,
  • accept all or
  • accept any commercial units and reject the rest

Question 6

Right to Reject Cut of by Acceptance

Answer 6

cut off by acceptence.

Accepts when:

1) reasonable opp to inspect goods, indiactes that they conform or she will keep them
2) fails to reject within a reasonable time or fails to notify seller of rejection in reasonable time
3) does not any act inconsitent with seller’s owenrship

Question 7

Buyer’s Responsibility for Goods After Rejection

Answer 7

must hold them with reasoanble care at seller’s dispion and obey instructions.

If no instructions may ship them, store them or resell them for seller

Question 8

Buyer’s Right to Revoke Acceptance

Answer 8

When may be revoked:

The goods have a defect that substantailly imparis their value and:

1. accepted on belif they would be cured OR
2. Accepted them due to sellers assurances of the goods or difficulty in discovering defect

Must occur within a reasonable time and before any substantial change of the good

Question 9

Exceptions to the Perfect Tender Rule

Answer 9

• Installment Contracts: substnaitally impairs and cannot be cured (for both part and whole of k)
• Sellers Right to Cure
  
  • SIngle Delivery K
    
    • can cure by notice and new tender within time for performance
    • has further easonable time if the seller believed products would be good
  • INstallment Contract–cannot reject if can be cured
    *

Question 10

Anticipatory Repudiation

Answer 10

can be deemd an immediate breach