Page 33 Flashcards Preview

Contracts FYLSE > Page 33 > Flashcards

Flashcards in Page 33 Deck (28):
1

What are the three major categories of performance?

Conditions, discharge, breach

2

If a contract has been formed, has consideration, and there are no defenses to formation, what should be discussed next on an essay?

- were there express conditions? Were they for filled or excused
- was there an implied condition?
- did a party perform substantially?
- was the contract divisible, and if so was it partly performed?
- did one-party materially breached?
- did a party repudiate? Was it anticipatory?
- could there have been assurances of performance?
- was failure to perform excused by impossibility or frustration?
- was contract discharged by rescission, release, accord/satisfaction, acceptance of full payment check?

3

What is the good faith obligation to perform?

It's party has a duty of good faith and fair dealing in performance and contract and enforcement

4

What is the UCC good faith obligation?

Honesty in fact, and merchants must also observe reasonable commercial standards of fair dealing in the trade

5

What is bad faith?

Conduct that violates community standards of decency, fairness, or reasonableness

6

What are some examples of bad faith?

Lack of diligence, willfully giving in perfect performance, abuse of power to specify terms, failing to cooperate, etc.

7

What is the leading theory on good faith called excluder theory?

Good faith has no meaning on its own, it just means the absence of bad faith

8

Once a condition is either excused or satisfied, then the duties become what?

Mature and absolute

9

What is a condition?

An act or event (other than lapse of time) that must occur before a duty to perform the contractual promise arises or that discharges a duty of performance that has already risen

10

Why is passage of time not a condition?

Because it is certain to occur

11

What effect do conditions have on performance?

They hold it up and contact doesn't have to be performed unless they occur

12

If a condition is not met, it triggers what?

Either a duty to perform, or relieves a duty to perform

13

What is classic language to show a condition?

"Unless"

14

What is a condition subsequent?

A condition that takes away a party's duty to perform when the specified event occurs

15

Failure of a condition can result in what?

Forfeiture

16

Is non-for filament of the condition considered a breach?

No, it is a forfeiture, which doesn't result in liability

17

What is an express condition?

Language of the contract expressly states the condition and specifically uses words like "if", "Subject to", "on condition that", "provided that".

18

What has to happen with a condition before the duty arises?

It must be fully and literally complied with

19

What are The two types of express conditions?

Implied and constructive

20

What is an implied condition?

Terms of contract clearly indicate parties intended some event would occur before a duty would arise, even though no express language says it

21

Example of an implied condition?

"Dependent on financing" means an implied promise to use reasonable efforts to get the loan

22

What is a constructive condition?

Judge creates a condition because fairness requires it be included to avoid unjust results

23

When are constructive condition used?

If parties omitted a term that is essential, so the courts will supply A reasonable one

24

Must constructive conditions be fully complied with?

No, they just have to substantially occur, and minor discrepancies aren't a problem

25

What is the reason that courts interpret doubtful language as a promise instead of a condition?

Because courts abhor forfeitures, which is the result of the failure of a condition

26

How do you know if something is a condition or a promise?

Language:
- if it says "provided that" or "but if", it is a condition. If a state of affairs has to exist before some other part of the agreement
- if contact is specified to involve a state of affairs that one party tries to bring about, that is a promise

27

What is the difference for consequences between a promise and A condition failing?

- promise: breach of contract
- addition: duty is discharged (forfeiture)

28

What language is used for conditions versus promises?

- condition: provided that, if, when
- promise: promise, Agree