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Flashcards in Page 43 Deck (25):
1

What are the different ways a discharge of condition can happen?

- Mutual rescission
- release
- Accord and satisfaction
- payment in full check

2

Is mutual rescission considered binding?

Yes, because both parties surrender their right to the other's performance

3

If one party has completed performance, can mutual rescission apply?

No, because mutual rescission must involve both parties giving up a right

4

Must mutual rescission be in writing?

Only if it is for an interest in land or sale of goods under the SOF

5

How can the maker of a contract get a release that extinguishes the contractual rights in his favor?

By using adequate consideration

6

Must a written release always have new consideration?

No, many states say it is effective without new consideration because of writing is a substitute for consideration

7

What does the UCC say about releases?

Duties can be discharged by a written release that is signed and delivered even without consideration

8

What are the two types of breach?

Anticipatory and present

9

What is anticipatory breach?

Party entitled to the condition repudiates before performance by clearly indicating he will not perform. This excuses the condition and the person is immediately liable for breach, and innocent person can bring an immediate action for the entire value of the promised performance

10

Can there be an anticipatory breach if the innocent party has already fully performed and is just waiting for the date performance will be due?

No

11

Is a good faith repudiation where party states honorable motives for not performing OK?

Good faith is immaterial, performance is judged by an objective test

12

Anticipatory breach accelerates the breach to what moment?

To the moment of repudiation and allows the person to immediately Sue

13

Under the UCC what are damages for anticipatory breach?

Difference between market value at the time plaintiff learned of the breach and the contract price

14

What are the three actions that create an anticipatory breach?

- Unequivocal statement that party will breach
- transfer of essential item for performance to someone else
- voluntary act that makes performance impossible

15

If A repudiation happens at the same time as non-performance, is that anticipatory repudiation?

No, that is present repudiation and a breach

16

What are the two ways to repudiate a contact?

Express and by conduct

17

If you express doubt, is that a repudiation?

No

18

How can you expressly repudiate a contract?

Reasonably clear and sufficiently positive communication to the other party that you are repudiating

19

How do you repudiate a contract by conduct?

Do an act that prevents performance

20

If you agree to buy someone's car if you can get financing, but while that is pending, you file for bankruptcy, what has happened?

You have repudiated the contract by conduct, because filing for bankruptcy prevents the financing, which excuses all conditions and accelerates the breach

21

What is needed in order to make an adequate assurance of performance request under the UCC?

Must have a reasonable grounds to think that tender will not be made

22

How much time does a person have to respond to a request for adequate assurance of performance?

A reasonable time that is not more than 30 days

23

If you make a request for adequate assurance of performance under the UCC, what can you do until you get an answer?

Suspend performance

24

If a party indicates through words or actions that he doesn't intend to perform, what can the other party do?

Can bring an immediate suit, or if it is a total breach he can terminate the contract. But if the aggrieved party has completely performed, and repudiation happens, he can't sue until the time for the other's performance has passed

25

If the non-repudiating party has already completed performance, why does anticipatory breach not apply?

The innocent party just has to wait to see you until there is an actual breach.