Excuse of Nonperformance

Question 1

What constitutes a breach to show other party’s nonperformance? (UCC vs. C/L)

Answer 1

1. UCC - Seller must make perfect tender
2. C/L- material breach. Only requires substantial performance.
   -Minor breach by one party will not excuse other
   party’s performance

Question 2

Common law right to cure breach

Answer 2

• If other party offers to cure breach you can suspend performance to see if they actually cure
• If they do cure you have to pay K price minus damages incurred

Question 3

Anticipatory Repudiation

Answer 3

• Unequivocal manifestation by one party to the other that:
  1. The repudiating party cannot or will not perform its obligation under the K and
  2. Made prior to the time performance is due
• Excuses the duty to perform by non-breaching party
• Generally gives an immediate claim for breach of K

-Mere expression of doubt is not enough (but may entitle the other party to demand adequate assurances)

Question 4

Can repudiation be retracted?

Answer 4

So long as the non-repudiating party as not relied on the repudiation

Question 5

Accord and Satisfaction

Answer 5

• Agreement to accept substituted performance in FUTURE satisfaction of a contractual duty.
  1. The Accord is the new agreement to accept a different performance in order to discharge existing duty
  2. The Satisfaction is the performance of the new agreement
• ***The original duty is not discharged until performance of the new agreement. Only suspends the original duty

Question 6

Recission

Answer 6

• Cancellation of duties under K
• Discharge occurs at time of this new agreement
• There has to be some performance left on both sides, if either party has fully performed, there can be no valid recission

Question 7

Impossibility or Impracticability

Answer 7

1. Post K occurrence
2. Not reasonably foreseeable at time of K
3. Renders performance impossible (commercially impracticable)
4. Without the fault of the party seeking to be excused

Question 8

Destruction of Subject Matter UCC

Answer 8

• Excuses performance, but must consider
  1. Were the goods destroyed subject matter of K?
  2. Did the buyer have risk of loss at time?

Question 9

Partial Impossibility - UCC

Answer 9

• If Seller loses large amount of goods because of causes not by their own fault that are subject to Ks of different buyers seller is required to allocate remaining inventory in a”manner which is fair and reasonable”
• S may include regular customers not under a K
• Various buyer not required to take partial delivery but cannot sue for breach of K

Question 10

Temporary Impossibility

Answer 10

• Something like bad weather on construction project suspend K duties, but does not discharge them
• When performance becomes possible, duty “springs back” into existence

Question 11

Excuse by Reason of Frustration of Purpose

Answer 11

Look for

1. Post K occurrence
2. Not reasonably foreseeable at time of K
3. Totally or nearly totally destroys the purpose or value of the K
4. The purpose was known to both parties at time of K