Flashcards in Chapter 18 Preformance And Discharge In Traditional And E Contracts Deck (37):
A condition that must be fulfilled before a party's performance can be required is called A
When a condition operates to terminate a party's absolute promise to preform
If the condition occurs the party's duty to preform is discharged
In general condition ------ are common and condition ---- are rare
The restatement of contracts does not use the terms condition subsequent and condition precedent, rather it
Refers to both as conditions
When each party's performance is conditions on the other party's performance or tender of performance
These conditions exist when the contract calls for party's to preform their respective duties simultaneously
Express conditions are provided by the parties agreement
No particular words are necessary, but are normally prefaced with the words
If, provided, after, when
Implied conditions are understood to be part of a contract but are not found in express language. Courts find implied terms....
From the purpose of the contract, or the intent of the parties. Conditions are often implied when they are nesisary for performance of the contract
An unconditional offer to preform by a person who is ready willing and able to do so
Performance has been tendered
When a party performs exactly as agreed they have performed " perfectly" it is said to be
If party's to a contract did not expressly make the specifications a condition, however, and the builder fails to meet the specifications
( doctrine of substantial performance)
A party who, in good faith performs substantially all of the terms of a contract can enforce the contract against the other party under the doctrine of...
Basic requirements for substantial performance
1. Party must have performed in good faith
2. The performance must not vary greatly from performance promised in the contract.
3. Performance must creat substantially the same benefits as those promised in the contract
Effect of substantial performance on duty to preform
If the performance is substantial the other party's duty to perform....
Except that they can sue for damages due to minor deviations
Measure of damages is
The cost to bring the contract into compliance with its terms
If* that cost is reasonable under the circumstances
If the cost of bringing a contract to its terms is unreasonable then the measure of damages is ----
The difference in value between the performance that was rendered and the performance that would have been rendered if the contract had been performed completely
When the subject matter is personal, the obligation is conditional, and performance must----
Actually satisfy the party specified in the contract.
Works of art
Most other contracts ( with the exeption of personal subject matter) need to be preformed only to the satisfaction of a reasonable person
They expressly state otherwise
The non-performance of a contractual duty is
Breach of contract
When there is ------— the no breaching party is excused from the performance of contractual duties
If the breach is minor, not material, the nonbreaching party's duty to preform is
Somtimes* suspended until the breach has been remedied
Any breach entitles the Bon breaching party to -------. But only a ------- discharges the nonbreaching party from the contract
Sue for damages
One party refuses to Cary out his or her contractual obligations before either party has a duty to preform
Repudiation is what kind of breach?
And the nonbreaching party is permitted to bring an action for damages immediately
Until the nonbreaching party treats an early repudiation as a breach the repudiating party can
Can retract his or her repudiation by proper notice and restore the parties to their original obligations
Anticipatory repudiation often occurs when performance of the contract would be
Extremely unfavorable to one of the party's due to a sharp fluctuation in market prices
If no time for performance is stated in the contract-----
A reasonable time is implied
It what situation would a performing party's right to payment be destroyed?
if time is expressly stated to be vital or " of the essence"
A party may also have to complain to make sure the breach of time provision is not waived
Any contract can be discharged by
Agreement of the parties
Discharge by mutual rescission Involves
The parties make another agreement that satisfies the legal requirements for a contract
Offer, acceptance, and consideration
Mutual rescission what will constitute consideration for the second contract?
Their promises not to perform the acts stipulated in the original contract
Discharge by novation occurs when
Both parties of the contract agree to substitute a third party for one of the original party's
The requirements of a novation are as follows
1. A previous valid obligation
2. An agreement by all parties to a new contract
3. The extinguishing of the old obligation (discharge of the prior party)
4. A new contract that is valid
Discharge by settlement involves
The agreement with be substituted as a new contract and will either be expressly or impliedly revoking and discharging the obligations under the poor contract
Discharge by accord and satisfaction.
Parts agree to accept a performance that is different from the performance originally promised