Kaplan Pgs 233-257 Performance

Question 1

What is a non-carrier case?

Answer 1

When the parties do not intend for the goods to be moved by a common carrier

Question 2

What is a carrier case?

Answer 2

Wen, according to the expressed terms or the circumstances of the agreement, the parties intend for the goods to be moved by a common carrier

Question 3

What is a Destiination contract?

Answer 3

When the seller agrees to tender the goods at a particular Destiination

Question 4

What’s the deal with free onboard contracts?

Answer 4

It will state FOP and then the location. That will mean that the seller’s risk and expense ends once he puts it in the possession of the carrier at that location

Question 5

What are the two different types of free onboard shipments?

Answer 5

Dash FOB cellars place of shipment

– FOB destination

Question 6

What is the difference between FOB cellars place of shipment and FOB destination?

Answer 6

– Shipment: the seller only has to pay and have risk to get the goods to the possession of a carrier at the sellers place of shipment
– Destiination: the seller has to add his own expense and risk tender delivery of the goods at the Destiination location

Question 7

What does it mean for delivery to be “free along side“ or “FAS“?

Answer 7

The seller has to deliver the goods along side the vessel or on a dock designated by the buyer

Question 8

What are the buyers rates, unless agreed otherwise, with relation to inspection of the goods?

Answer 8

The buyer has the right unless the parties agreed otherwise to inspect the goods upon tender and delivery before making payment or excepting

Question 9

What happens to the risk of loss generally speaking when a seller shipped the goods by carrier?

Answer 9

It usually passes to the buyer once the goods are delivered to the carrier as long as the contract doesn’t require that the seller deliver the goods at a particular Destiination. If it is a Destiination contract, the risk shift when the goods are tendered at the Destiination

Question 10

What are some exceptions to the pre-existing duty rule of common law?

Answer 10

Dash mutual modification

– unforeseen circumstances

Question 11

Does the pre-existing duty rule apply under the UC see?

Answer 11

No

Question 12

Why does an agreement that modifies an existing contract for the sale of goods under the UC see not require consideration?

Answer 12

Because of the good faith test

Question 13

What is the difference between unilateral mistake and mutual mistake?

Answer 13

• Unilateral: when only one party makes a mistake about a material fact in the contract, he’s not excused from his performance unless the other party knew or had reason to know if the mistake or the mistake was based on a clerical error
• Mutual mistake: when both parties have the same faulty assumption regarding the contract, the contract is voidable by the disadvantaged party when the faulty assumption is essential to the contract, both parties were mistaken, and the disadvantaged party did not bear the risk of a mistake under the agreement

Question 14

What are the three main types of impossibility?

Answer 14

– Distraction of the subject matter
– death or incapacity
– illegality

Question 15

What is the idea of impracticability and what are the elements for it?

Answer 15

Idea: the promisor can be excused if unforeseen difficulties come up that are either prohibitively expensive or extremely burdensome

Elements:
– impracticability was caused by an unforeseen contingency
– the risk was neither assumed nor allocated by the parties
– the increase in the cost of performance is far beyond what either party anticipated

Question 16

Is increased cost alone sufficient for impracticability?

Answer 16

No

Question 17

Where is situation under the UC see that are likely to trigger impracticability?

Answer 17

Dash severe shortages of raw materials or supplies that are caused by:
– Warr/embargo
– local crop failure
– unforeseen shut downs of major sources of supply

Question 18

What are the three elements for frustration of purpose?

Answer 18

– The parties principal purpose to enter the contract was frustrated
– there was substantial frustration
– a basic assumption of the contract was non-occurrence of the event that precipitated the frustration [AKA: the event that caused the frustration was not reasonably foreseeable]

Question 19

What are the circumstances when you would make an adequate assurance of performance?

Answer 19

When an anticipatory repudiation can’t be established but there are reasonable grounds for insecurity to believe that the other party is unwilling or in able to perform

Question 20

How much do you make a demand for adequate assurance of performance?

Answer 20

It must be made in writing. The response to it can be either in writing or oral

Question 21

If a party makes a demand for adequate assurance of performance, and doesn’t hear anything, what happens?

Answer 21

The insecure party can treat it as a repudiation as long as there was no response within 30 days/reasonable time or the response was not a reasonable assurance

Question 22

What is the difference between a promissory condition and a pure condition?

Answer 22

– Promissory: performance is conditioned on the person doing something first
– pure: performance is conditioned on events happening that are beyond the control of either party

Question 23

Under the common-law, What is the difference between what happens if a condition fails if the condition was express or implied?

Answer 23

Dash express: the parties obligations to perform are discharged

Question 24

What are situations when a failed condition would be excused and you would have to perform anyway?

Answer 24

Dash if the party who had been discharged from performing because of the field condition waived the right to discharge and performed anyway
– if the condition was excused because of bad faith, then the person who acted with bad faith would have to perform anyway

Question 25

What’s the difference between what duties you have to perform if there has been a material breach or a less serious non-material breach?

Answer 25

– Material breach: you can walk away from your obligations and sue the breaching party for damages
– non-material breach: you’re not discharged from performance, but you can sue for damages

Question 26

What’s the best way to determine if a contract is divisible?

Answer 26

Dash if it can be apportioned into corresponding pairs of performances
– if each pair can be properly thought of as an agreed equivalent

Daddy is basically that it is divisible if the contract is nothing more than the sum of its parts. If it is more than that so if it’s parts, then it’s not visible.

Ie: A one-year cleaning service contract is divisible if it is paid for on a monthly basis because it’s easy to a portion into pairs of part performance with 12 monthly exchanges. Where is a contract to build a house that has progress payments every month would still be non-divisible because the progress payments are not agreed equivalent in the whole is greater than the sum of the parts

Question 27

What law follows the perfect tender rule, and what is that?

Answer 27

UC see. Basically if the goods or the tender of delivery fail in anyway to conform to the contract, the buyer can do one of these three things:
– reject the goods
– except the goods
– reject part and except part

Question 28

If goods were delivered to a buyer that were not proper, and the buyer rejected them, what must you do at that point?

Answer 28

He must reject the goods within a reasonable time after delivery and notify the seller within a reasonable time.

Question 29

If a buyer rejects goods under the perfect tender rule, and notifies the seller within a reasonable time, but the seller gives no instructions about what to do, what must the buyer do?

Answer 29

He can store the goods for the sellers account, receptive to the seller, or resell them for the sellers account

Question 30

In what situation can a buyer revoke his acceptance of non-conforming goods?

Answer 30

If he was initially unaware that they were nonconforming because of the difficulty of discovering it or he excepted them because the seller made assurances of their conformity or that the nonconformity would be cured. The buyer must revoke within a reasonable time after he discovers the nonconformity.

Question 31

What is an installment contract?

Answer 31

When the contract contemplates a delivery of goods in separate lots to be separately accepted by the buyer