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A. Aaall classes > Performance and excuse of nonperformance > Flashcards

Performance and excuse of nonperformance Flashcards

1
Q

What condition do goods need to be delivered in under Article 2

A

need perfect tender - goods delivered exactly as promised in the contract

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2
Q

list (4)

seller’s duties in shipment contracts where seller has not agreed to tender at a particular destination

A
  1. Carrier: put good in hands of a reasonable carrier
  2. Contract: make a reasonable K for transporation of goods to buyer
  3. Documents: obtain + tender documents for buyer to take possession of goods
  4. Notice: promptly notify buyer of shipment
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3
Q

seller’s duties in destination contracts where seller HAS agreed to tender at a particular destination

A

put and hold goods at buyer’s disposition

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4
Q

When is price due for a noncarrier case

A

tender of delivery

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5
Q

place of delivery in a noncarrier case

A

seller’s place of business if no other place mentioned

(or his home if no ppb)

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6
Q

When is price due for a carrier case

A

when buyer receives goods

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7
Q

when is price due for installment contracts

A

seller can demand payment for each installment

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8
Q

If a buyer uses a check to pay, the buyer’s duty to pay is:

A

suspended until check is cashed or bounces

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9
Q

promise vs. condition

in the context of failing to meet them

A

promise - failure of a promise is breach of K

condition - failure of a condition (taking place) relieves a party of obligation to perform

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10
Q

words such as “provided”, “if”, “when” usually indicate

A

a condition

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11
Q

words such as “promise”, ‘agree” usually indicate

A

a promise

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12
Q

what is a condition predecent

A

condition that must occur before duty of performance arises

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13
Q

condition concurrent

A

conditions that can occur together and parties bound to perform at same time

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14
Q

condition subsequent

A

condition that when it occurs cuts off an already existing duty of performance

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15
Q

“Curbside”

Excuses for nonperformance

A

Excuse of condition by:

  1. Cooperate, failure to; hindrance
  2. Unwillingness/inability to perform
  3. Repudiation, anticipatory
  4. Breach
  5. Substantial performance
  6. Impossibility, impracticability, frustration
  7. K Divisibility
  8. Estoppel/waiver
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16
Q

Excuse of condition by failure to cooperate/excuse of condition by hindrance

A

if a party’s duty to perform is tied to a condition and that party wrongfully prevents the condition from occurring, the other party is excused

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17
Q

💡⭐️ when faced with excuse of condition by failure to cooperate ask ⭐️💡

A
  1. Who is protected by condition?
  2. Did they do anything to give up the protection up?
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18
Q

Excuse of condition by estoppel or waiver

A

Party 1 can waive a condition

If Party 2 detrimentally relies on condition, Party 1 estopped from waiving

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19
Q

is consideration required for waiver of condition

A

no

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20
Q

Excuse of condition by breach

A

breach of K when performance is due excuses duty of counter performance

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21
Q

counter performance is excused under CL if breach is

A

material

22
Q

Excuse of condition by anticipatory repudiation

A

AR excuses performance

AR = early statement of non-performance

23
Q

Anticipatory repudiation applies to what type of Ks

A

Bilateral Ks with unperformed duties on BOTH sides

24
Q

list (4)

What option does nonrepudating party have

A
  1. Treat AR as total repudiation and sue immediately
  2. Suspend their performance and wait to sue until performance date
  3. Treat repudiation as an offer to rescind and treat K as discharged -OR-
  4. ignore repudiation urger promisor to perform
25
Q

Excuse of condition by unwillingness/inability to perform

A

P1 has reasonable grounds to believe P2 will be unable or unwilling to perform

26
Q

Excuse of condition by substantial performance

A

Condition excused if party has substantially performed

BUT NOTE: courts generally apply substantial performance doctrine only if an implied in law condition is involved and will not apply doctrine if there is an express condition

(applying doctrine when there is an express condition would likely defeat the express intent of the parties)

27
Q

most courts won’t apply doctrine of substantial performance if breach of duty was

A

willfull

28
Q

Doctrine of substantial performance as it relates to sale of goods

applicable defense?

A

generally no because goods generally require perfect tender

29
Q

Excuse of condition by K divisiblity

A

If K is divisible and party performs just those parts then they are entitled to the agreed-upon equivalent even if they fail to perform the other parts

30
Q

list (3)

What is a divisible K?

A

Three tests must be concurrently met to make a K divisible

  1. Performance of each party is divided into two or more parts
  2. Number of parts due from each party is the same
  3. Each party performs the equivalent parts of each part of the divisible K (aka quid pro quo)
31
Q

💡⭐️ When a CL K has a price unit immediately consider ⭐️💡

A

K divisibility!!

32
Q

Contract can be discharged through

A
  1. Performance or tender of performance
  2. Occurrence of a condition subsequent
  3. Illegality
  4. Rescission
  5. Partial discharge through contract modification
  6. Cancellation
  7. Release
  8. Substituted Contract
  9. Accord and Satisfaction
  10. Novation
  11. Impossibility, Impracticability, Frustration
  12. Account stated
  13. Lapse
  14. SOL
33
Q

Recission may either be

A

mutual or unilateral

34
Q

mutual rescission

A

express agreement btwn the parties

the agreement to rescission is itself a binding contract supported by consideration

35
Q

mutual rescission when a third-party beneficiary is involved

A

if rights have already vested → contract cannot be discharged by mutual rescission

36
Q

executory contract

A

a contract that has not yet been fully performed or fully executed → meaning that unperformed obligations remain on both sides

37
Q

for a contract to be effectively discharged by mutual rescission, the duties of the parties

A

must be executory on both sides

meaning that both sides have unperformed obligations

38
Q

unilateral rescission

A

when one of the parties to the K desires to rescind it but other party desires that K be performed according to agreed upon terms

NOTE: if only one party owes an absolute duty to perform (unilateral contract) → cannot have mutual rescission

39
Q

list (3)

what is needed for unilateral rescission

A
  1. offer of new consideration by nonperforming party
  2. elements of promissory estoppel (iow detrimental reliance) -OR-
  3. manifestation of intent by the original offerree to make a gift of the obligation owed to them
40
Q

partial discharge by modification of a contract discharges the term of

A

original K BUT does not discharge the entire contract

41
Q

What is an accord

A

agreement in which one party to an existing K agrees to accept some other different future performance in lieu of the performance they were supposed to originally receive from the other party

42
Q

what is satisfaction

A

completion of accord agreement

43
Q

does accord discharge to K

A

NO, it merely suspends. Need accord and satisfaction to discharge K

44
Q

An accord must generally be supported by

A

consideration

45
Q

what is a novation

A

when a new K substitutes a new party to receive benefits and the new party assume duties that had belong to original party that was supposed to receive benefits under old K

46
Q

list (4) “pain”

what is needed for a valid novation

A
  1. previous valid K
  2. agreement amongst all the parties, including new
  3. immediate extinguishment of old contractual duties
  4. new valid and enforceable K
47
Q

Does death or incapacity discharge a K by impossibility

A

NO if the services are the type that can be delegated to someone else

48
Q

If there has been destruction of subj matter when will rules of discharge NOT apply

A

when ROL has passed to buyer

49
Q

Will a mere increase in cost be sufficient to discharge a K

A

NO unless it changes nature of K

50
Q

What is an account stated

A

K btwn parties whereby they agree to an amount as the final balance due

A. Aaall classes (27 decks)

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