Page 36 Flashcards
What are all the different ways that a condition can be excused?
- wrongful conduct
- waiver
- impossibility
- forfeiture
What is a waiver of a condition?
Knowing/voluntary abandonment of a right to insist on fulfilling of a condition
Does there have to be mutual assent, consideration, or a writing, for a waiver of condition to be valid?
No
Can you waive the right to a condition that is significant or material to the bargain?
No, those can only be deleted by a modification with consideration in writing
What is an example of waiver of condition?
Your insurance policy says you must give notice within 30 days of an accident to recover, but you were in a coma and couldn’t give notice until day 34, so the insurance company says that is sufficient and waives the condition. No problem because it was not a material part of the contract
Are contractual rights waivable?
No, only conditions
When can a waiver be withdrawn or retracted?
If party communicates withdrawal before the time for the condition to occur and the other party hasn’t detrimentally relied on the waiver
Is it possible for one party to waive a condition that benefits both parties?
No, that can only be removed through modification
If there have been repeated waivers, does that prevent the one party from requiring fulfillment of the condition on the next payment?
No, but estoppel can be raised if the one party changed position based on repeated waivers believing the next performances would be accepted despite similar defects, so enforcing party must give a reasonable period of notice
What is the way to avoid estoppel if there have been repeated waivers?
To agree to a “no waiver” at the beginning that says one waiver doesn’t allow for future breaches
A waiver can be withdrawn or modified before what?
A failure of condition, if it doesn’t operate unfairly
If you contract for a building to be finished by January 1 with time of the essence, before that deadline, it can be waived, but that doesn’t waive what?
The work, it just waives the deadline
If there has been a waiver of the condition, can it be reimposed?
Yes, but only if there hasn’t been a change of position based on it, or if reliance has happened, there must be a reasonable time given
If a waiver of a condition happened and there was no new deadline for performance, what happens?
It is assumed to be within a reasonable time
What is an election?
After a failure of condition, the injured party elects to continue
