Chapter 12: Express Conditions, Constructive Conditions, and Excuse and Discharge Flashcards Preview

Contracts (II) > Chapter 12: Express Conditions, Constructive Conditions, and Excuse and Discharge > Flashcards

Flashcards in Chapter 12: Express Conditions, Constructive Conditions, and Excuse and Discharge Deck (35):
1

Waiver (def)

Gave up right to enforce condition-> excuse

2

Estoppel (def)

Takes action indicating intent not to enforce condition and that the other party relies on-> excuse

3

Prevention/failure to cooperate/bad faith (def)

Causes condition to not occur with no good faith-> Usually discharge

4

Frustration of purpose (def)

Unforeseen event causes the party's entire reason for making the contract not exist-> Discharge

5

Anticipatory repudiation (def)

1. Before performance is due
2. Communicate unequivocal absolute refusal to perform-> discharge and breach

6

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

7

Excuse (def)

Set aside condition

8

Discharge (def)

when no longer due (usually when performed)

9

Waiver or Estopped Condition (rule)

Only allowed if condition is relatively minor.

10

Condition (Def)

an event that must occur before performance becomes due
Can be but is not always a promise

11

If condition but not promise

if condition does not occur then performance is excused

12

If just promise and not condition

performance is not excused

13

If promise and condition

excuses further performance but is also a breach

14

Promise (formula)

1) created by parties, 2) creates duty, 3) if occurs discharges duty, 4) if fails rights to remedies

15

Condition (formula)

1) created by parties or court, 2) postpones duties, 3)creates duty if occurs, 4) excuses duty if fails

16

Condition (types)

Express and Constructive

17

Express (Def)

actually stated as terms (complete performance/good faith effort)-> may raise PER

18

Constructive (def)

conditions imposed by courts on bilateral ks to achieve justice (sub performance)

19

Express (terms)

Subject to, if

20

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.

21

Time is of the Essence (def)

is a condition. If time is not respected, no performance

22

Satisfaction clauses (def)

usually treated as express conditions (commercially reasonable standard or good faith-> the most common)

23

Constructive conditions (rule)

1. Is there a constructive condition?
2. Order of performance?
3. Did the CC occur?
4. Consequences of failure or success?

24

Constructive (types)

Precedent, concurrent, independent

25

Precedent (def)

one party must go firsts and the other doesnt have a duty if they don't

26

Concurrent (def)

each party must render or tender for the other to have a duty

27

Render (def)

perform

28

Tender (def)

Offer to perform

29

Independent

Must be performed regardless of the other person

30

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.

31

Divisibility (def)

If can be broken down into pairs of performances then treat as separate ks

32

Impracticability (def)

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

33

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

34

If material condition

excused and rest is discharged

35

If not material condition

just excused