Flashcards in Chapter 12: Express Conditions, Constructive Conditions, and Excuse and Discharge Deck (35):
Gave up right to enforce condition-> excuse
Takes action indicating intent not to enforce condition and that the other party relies on-> excuse
Prevention/failure to cooperate/bad faith (def)
Causes condition to not occur with no good faith-> Usually discharge
Frustration of purpose (def)
Unforeseen event causes the party's entire reason for making the contract not exist-> Discharge
Anticipatory repudiation (def)
1. Before performance is due
2. Communicate unequivocal absolute refusal to perform-> discharge and breach
Failure of assurances (def)
1) If reasonable grounds for concern of future material breach, duty to demand assurances
2) Treated as repudiation if not provided-> discharge and breach
Set aside condition
when no longer due (usually when performed)
Waiver or Estopped Condition (rule)
Only allowed if condition is relatively minor.
an event that must occur before performance becomes due
Can be but is not always a promise
If condition but not promise
if condition does not occur then performance is excused
If just promise and not condition
performance is not excused
If promise and condition
excuses further performance but is also a breach
1) created by parties, 2) creates duty, 3) if occurs discharges duty, 4) if fails rights to remedies
1) created by parties or court, 2) postpones duties, 3)creates duty if occurs, 4) excuses duty if fails
Express and Constructive
actually stated as terms (complete performance/good faith effort)-> may raise PER
conditions imposed by courts on bilateral ks to achieve justice (sub performance)
Subject to, if
Paid when Paid (def)
usually gen and sub contractors
When ,as, or after, gen is paid.
Courts can fill gap if it doesn’t say what happens if not paid.
Time is of the Essence (def)
is a condition. If time is not respected, no performance
Satisfaction clauses (def)
usually treated as express conditions (commercially reasonable standard or good faith-> the most common)
Constructive conditions (rule)
1. Is there a constructive condition?
2. Order of performance?
3. Did the CC occur?
4. Consequences of failure or success?
Precedent, concurrent, independent
one party must go firsts and the other doesnt have a duty if they don't
each party must render or tender for the other to have a duty
Offer to perform
Must be performed regardless of the other person
Constructive Condition Creation (rules)
1. Impose CC on bilateral ks
2. Dates/times determine the order
3. If can perform at same time then mut render or tender
4. If one requires a period of time, that is first
5. If order is unclear, CC will be based on nature and intent.
If can be broken down into pairs of performances then treat as separate ks
1. Occurrence of unforeseen event
2. Makes performance so different that alters nature of k
3. The nonperformance of the event was a basic assump of the k
4. No fault in causing event
5. Did not assume risk
Did not assume risk (rule)
k does not assign, unforeseen so did not take the risk, or was not in control so could not avoid loss
If material condition
excused and rest is discharged