Performance

Question 1

What is a condition precedent

Answer 1

a future event that must occur before either parties performance is due

Question 2

When is nonoccurence of condition excused

Answer 2

waives by words or conduct
party wrongfully prevents or interferes with condition occurrence
party indicates condition will not be enforced & other party reasonably and detrimentally relies
party substantially performed & will be harmed if not enforced

Question 3

Unilateral Contract

Answer 3

requires performance instead of a return promise (like a bilateral contract)

Question 4

Do you need to give notice of acceptance to form a unilateral contract?

Answer 4

It is not required

UNLESS the offer requires notice or the offer has reason to know that the offeror would not learn of the completed performance within a reasonable time

Question 5

What is shipment contract?

Answer 5

parties are using a common carrier

the risk of loss passes from seller to buyer when goods are delivered to carrier

Question 6

Destination contract

Answer 6

requires delivery to particular location

risk of loss passes from seller to buyer when the goods are delivered to the particular place

Question 7

Disclaim Implied Warranties

Answer 7

Language that disclaims the warranty (oral or written depending on warranty type)

if examination would have revealed defect if the buyer examined the goods as fully as desired or refused to examine the goods before entering into the contract

Question 8

Impractablility

Answer 8

There will not be breach if the perforamnce was discharged because of impracticability:

unforeseen vent occurs
nonoccurence of event was basic assumption on which contract was made
party seeking discharge was not at fault

Question 9

Impractablility

Answer 9

There will not be breach if the perforamnce was discharged because of impracticability:

unforeseen vent occurs
nonoccurence of event was basic assumption on which contract was made
party seeking discharge was not at fault

Question 10

Examples of Impractability

Answer 10

death, destruction of something needs, illegality

Question 11

Can a party recover from impracatability

Answer 11

yes

Restitution damages are recoverable for benefits conferred before performance was discharged

Question 12

Can a party recover from impracatability

Answer 12

yes

Restitution damages are recoverable for benefits conferred before performance was discharged

Question 13

When is an obligation not delegable

Answer 13

when the other party has substnaitla interest in having the party perform or when prohibits delegation

Question 14

Hierarchy to consider the admissibility of Extrinsic Evidence

Answer 14

express terms
course of perforamnce
course of dealing
trade usage

Question 15

Implied Warranty Merchantability

Answer 15

seller is merchant & goods are their ordinary purpose

disclaim with conscious language doesn’t have to be in writing but can be

Question 16

Implied Warranty Fitness Particular Purpose

Answer 16

seller has reasonable to know buyer has particular use for goods & buyer relies on seller expertise. doesn’t have to be a merchant but can be

disclaimed with conscpious language & in writing

Question 17

ways to discharge performance

Answer 17

impracticability
impossibility
frustration of purpose
recession
release
destruction of good (UCC)

Question 18

Partial Impracticability

Answer 18

only suspends duty, discharge only if perforamnce is material and burdernson

Question 19

Frustration of Particular Purpose

Answer 19

events destroy purpose that the person entered into the contract. event doesn’t need to be completely unforeseeable

frustrated party may rescind

Question 20

Defenses to Enforcement

Answer 20

Illegality
Unconscionability
Public Policy

Question 21

Illegality

Answer 21

contract is unenforceable, void, duty to perform is discharged

UNLESS: ignorance of illegality, lack of legal purpose, divisible contract, licensing violation, resitituion

Question 22

Quasi Contract

Answer 22

P conferred measurable benefit from Defendant
P acted w/o gratuitous intent
unfair for D to retain benefit

Question 23

Implied Warranty of Merchantability

Answer 23

seller is merchant selling goods they normally sell

disclaim with conscious language can be oral or written

Question 24

Implied Warranty of Fitness for a Particular Purpose

Answer 24

seller has reason to know that buyer is relying no expertise

disclaim conscious language & in writing

Question 25

When does a intended third party rights vest?

Answer 25

detrimentally relies on rights created
manifest assent on contract
files lawsuit to enforce contract

Question 26

Statue of Fraud Requirements

Answer 26

Scope: Marriage, Suretyship, One year, UCC $500 or more, Real Property

writing (does not have to be formal) signed by the party to be charged & have essential elements of the deal

Question 27

Exceptions to SOF UCC

Answer 27

specially manufactured goods
part payment
receipt & acceptance
judicial admission
failure to object to memo within ten days

Question 28

What is common law requirement for the other partys duty to arise?

Answer 28

party must substantially perform one’s duties in order for the other partys duty to arise

UNLESS express condition (I will buy it if i like it) must be complied with exactly

Question 29

What is requirement for performance under UCC?

Answer 29

seller must provide perfect tender of goods or the buyer may reject

Question 30

When will seller have automatic right to cure

Answer 30

if do not deliver perfect tender and there is time left to perform on the contract or reasonable belief that buyer would accept non-confirming goods

Question 31

When will seller not be permitted to cure on the contract?

Answer 31

If installment contract the buyer may reject installment if substantial impairment

Question 32

When is a party excused from performing ?

Answer 32

if other party breaches

Question 33

What is exception to parol evidence rule?

Answer 33

evidence of prior or contemporance agreement is admissible if

• if writing is integrate and if so completely or partially
• meaning of ambiguous term
• defense to enforcement
• grounds for granting remedy
• subsequent contract modifications
• condition precendent to effectiveness