Breach Flashcards
A breach occurs when…
there is an absolute duty to perform and the promisor fails to do so.
A nonbreaching party must always show that they are…
willing & able to perform, but for the breaching party’s failure to perform.
Under the common law, once there is a breach, one must determine…
whether the breach is materal or minor.
A breach of contract is minor if…
the obligee gains the substantial benefit of their bargain, despite the obligor’s defective performance.
A minor breach does not relieve the aggrieved party of their duty of performance under the contract, instead,
it merely gives them a right to damages for the minor breach.
If the obligee does not receive the substantial benefit of their bargain, the breach is considered…
material.
If a breach is material, the nonbreaching party can…
(1) treat the contract as at an end (discharge of duty to perform); and
(2) immetiately sue for all remedies for breach of the entire contract, including total damages.
If a minor breach is coupled with an anticipatory repudiation, the nonbreaching party may…
treat it as a material breach & sue immediately for total damages.
Failure to perform by the time stated in the contract is generally…
not a material breach, unless the contract expressly provides that “time is of the essence.”
(note – must perform within a reasonable time)
Under the Article II perfect tender rule, if goods or their delivery fail to conform to the contract in any way, the buyer may…
- Reject all;
- Accept all; or
- Accept any commercial units and reject the rest.
A buyer’s right to reject under the perfect tender doctrine is generally cut off by…
the buyer’s acceptance.
Under Article II, a buyer accepts when:
- After a reasonable opportunity to inspect, they indicate that the goods conform or that they will keep the goods even though they fail to conform;
- They fail to reject within a reasonable time after tender; OR
- The buyer acts in any way inconsistent with the seller’s ownership.
A buyer may revoke their acceptance if the goods have a defect that…
substantially impairs the value to the buyer and they:
(1) accepted the goods on the reasonable belief the defect would be cured and has not been, OR
(2) accepted the goods because of the difficulty of discovery the defects or because of the seller’s assurances.
Revocation of acceptance by a buyer must occur within…
(1) a reasonable time after the buyer discovers or should have discovered the defects; and
(2) before any substantial change in the goods occur that is not caused by a defect present at the time the seller relinquished possession.
If a buyer has rejected goods because of defects, the seller may…
“cure” by giving reasonable notice of their intention to do so and making a new tender of conforming goods within the original performance period.
