Chapter 18 Preformance And Discharge In Traditional And E Contracts Flashcards Preview

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Flashcards in Chapter 18 Preformance And Discharge In Traditional And E Contracts Deck (37):
1

A condition that must be fulfilled before a party's performance can be required is called A

Condition precedent

2

When a condition operates to terminate a party's absolute promise to preform

Condition subsequent

3

If the condition occurs the party's duty to preform is discharged

Condition subsequent.

4

In general condition ------ are common and condition ---- are rare

Precedents

Subsequents

5

The restatement of contracts does not use the terms condition subsequent and condition precedent, rather it

Refers to both as conditions

6

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

Concurrent conditions

7

Express conditions are provided by the parties agreement

No particular words are necessary, but are normally prefaced with the words

If, provided, after, when

8

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

9

An unconditional offer to preform by a person who is ready willing and able to do so

Tender

10

Once -----•--------|

Performance has been tendered


The tender

11

When a party performs exactly as agreed they have performed " perfectly" it is said to be

Complete



Complete performance

12

If party's to a contract did not expressly make the specifications a condition, however, and the builder fails to meet the specifications


Performance is

Not complete

( doctrine of substantial performance)

13

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...

Substantial performance

14

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

15

Effect of substantial performance on duty to preform

If the performance is substantial the other party's duty to perform....

Remains absolute

Except that they can sue for damages due to minor deviations

16

Measure of damages is

The cost to bring the contract into compliance with its terms

If* that cost is reasonable under the circumstances

17

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

18

When the subject matter is personal, the obligation is conditional, and performance must----

Actually satisfy the party specified in the contract.

Portraits
Works of art
Tailoring

19

Most other contracts ( with the exeption of personal subject matter) need to be preformed only to the satisfaction of a reasonable person

Unless*----

They expressly state otherwise

20

The non-performance of a contractual duty is

Breach of contract

21

When there is ------— the no breaching party is excused from the performance of contractual duties

Material breach

22

If the breach is minor, not material, the nonbreaching party's duty to preform is

Somtimes* suspended until the breach has been remedied

23

Any breach entitles the Bon breaching party to -------. But only a ------- discharges the nonbreaching party from the contract

Sue for damages

Material breach

24

Anticipatory repudiation

One party refuses to Cary out his or her contractual obligations before either party has a duty to preform

25

Repudiation is what kind of breach?

Material breach

And the nonbreaching party is permitted to bring an action for damages immediately

26

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

27

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

28

If no time for performance is stated in the contract-----

A reasonable time is implied

29

It what situation would a performing party's right to payment be destroyed?

Time

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

30

Any contract can be discharged by

Agreement of the parties

31

Discharge by mutual rescission Involves

The parties make another agreement that satisfies the legal requirements for a contract

Offer, acceptance, and consideration

32

In
Mutual rescission what will constitute consideration for the second contract?

Their promises not to perform the acts stipulated in the original contract

33

Discharge by novation occurs when

Both parties of the contract agree to substitute a third party for one of the original party's

34

The requirements of a novation are as follows

1.
2.
3.
4.

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

35

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

36

Discharge by accord and satisfaction.

Parts agree to accept a performance that is different from the performance originally promised

37

Three types of conditions that can be present in contracts

Condition precedent
Concurrent conditions
Subsequent conditions