Contracts-Performance and Breach Flashcards
PER generally
When parties to a K have put in writing the final and complete expression of their agreement (“completely integrated”),
evidence of any other prior or contemporaneous oral or written agreement are not admissible to vary or contradict the terms of the writing
Admissible to explain the terms
Default gap filler: UCC
Price: reasonable as of delivery
Time of delivery: reasonable
Time of payment: time and place of receipt by buyer
Place of delivery: seller’s place of business
Quantity: definite, certain term required unless output/requirement K
Default gap filler: CL
Price: reasonable value
Duration: employment at will, given assurance of job security
Delivery by common carrier: Risk of Loss for Shipment K
If delivery by common carrier, it may be a shipment K (FOB seller) where ROL passes to buyer when goods are delivered to carrier
Shipment K is default if no FOB term
Delivery by common carrier: Risk of Loss for Destination K
If delivery by common carrier, it may be a destination K (FOB buyer) where ROL is on buyer upon delivery
Delivery by seller: Risk of Loss
Destination K
Delivery by seller who is a merchant: Risk of Loss
ROL passes to buyer when in buyer’s possession
Delivery by seller who is a non-merchant: Risk of Loss
ROL passes to buyer upon delivery
FAS: Risk of Loss
ROL passes to buyer once goods are delivered to dock
When can trade usage fill gaps or be used to interpret ambiguous language?
CECT
Course of performance >
Express terms >
Course of Dealing >
Trade Usage
Constructive Conditions
Conditions may be constructively implied where the duty of each party to render performance is conditioned on the other party doing so
Constructive Conditions: Sequence
- If simultaneous performance is possible, each pt must tender, to put other under duty to perform
- If one performance will take longer, its completion is due first as constructive condition precedent
When can Condition be excused by substantial performance?
Courts will only generally apply this if a constructive, rather than express condition is involved.
Three tests for divisible contract
The performance of each party is divided into 2 or more parts under the contract
The number of parts due from each party is the same
Performance of each part is the quid pro quo of the other
Anticipatory repudiation generally
Unequivocal statement/conduct indicating pt will commit a breach can be treated as immediate breach
When can repudiating party not retract repudiation?
Other party acts in reliance under repudiation OR
Accepts repudiation OR
Brings suit
What can aggrieved pt do following repudiation?
Aggrieved party may sue immediately, wait, discharge K or urge pt to perform
If repudiation cannot be established but there are reasonable grounds for insecurity, what can insecure pt do?
Insecure party may demand adequate assurance of performance
Failure to provide reasonable assurances within reasonable time (30 days) is treated as repudiation
Can then suspend performance
Modification: CL Requirement
New consideration.
Preexisting consideration cannot be used unless:
1. Duty owed to 3P
2. Unforeseen burdens: promise of increased compensation is given in exchange for a promised performance substantially more burdensome than reasonably anticipated at formation
3. Mutual modification: parties agree to a different performance that is not a mere pretense
Modification: UCC Requirement
Only GF.
Mod must be in writing if regarding sale >$500
UCC PTR: What can buyer do if goods or delivery fail to conform to K?
Buyer may
1) Reject goods within reasonable time of delivery OR
2) Accept goods OR
3) Accept some units
UCC PTR: When is buyer’s right to reject cut off
By acceptance or failure to reject within reasonable time
UCC PTR: When does seller have right to cure and make confirming delivery after notice
If seller reasonably believed nonconforming goods were acceptable
UCC PTR: When does buyer have right to revoke acceptance within reasonable time?
If acceptance relied on
1) assurance that defect would be cured, OR
2) difficulty of discovering defect, OR
3) seller’s assurance that goods conformed to K
