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Flashcards in Performance and Excuse of Nonperformance Deck (32):
1

Under the common law, what controls the method of performance of the contract?

the terms of the contract.

2

Under the common law, a party's basic duty is to __________________ all that is called for in the contract.

substantially perform

3

Under the UCC, a party has the duty to give ________________.

perfect tender; i.e. perform exactly as described in the contract.

4

In a sale of goods contract where the goods are nonconforming, the buyer has the right to reject unless what?

unless the nonconformity is cured or it is an installment contract.

5

When will a seller be allowed to cure where the time for performance has expired?

if the seller has a reasonable belief that cure is allowed due to previous dealings with the buyer, cure is permitted.

6

When will a seller be allowed to cure where the time for performance has not yet expired?

where the date for performance has not yet come, and the parties know the seller's performance is imperfect, the seller will be allowed to cure their performance before the date of performance.

7

Where one installment of an installment contract is imperfect, can the buyer reject all the installments?

No, just that one installment.

8

Can a buyer reject goods after having accepted them?

No, but he can revoke his acceptance.

9

A buyer has received goods but has not inspected them. What result?

He has not accepted them until he inspects the goods and retains them without complaint.

10

When can a buyer revoke his acceptance of goods?

1) where the nonconformity of goods substantially impairs the value of the goods to the buyer; 2) excusable ignorance of grounds for revocation or reasonable reliance on seller's assurance of satisfaction; and 3) revocation within a reasonable time after discovery of nonconformity.

11

Condition

a mutually agreed on promise modifier which does not create a new obligation, but which merely limits obligations created by other language in the contract.

12

Conditional Acceptance

conditioning one's acceptance of an offer on something not included in the original offer.

13

Performance Condition

a condition contained in the offer extended to the other party.

14

Covenant

a promise, not a mere condition.

15

Express Condition

a condition communicated by language of a contract.

16

Express conditions must be ___________ complied with.

strictly

17

How can an express condition be excused?

There are two ways an express condition can be excused: 1) by estoppel, where the person who benefits from the condition states their intent to give up the benefit; and 2) waiver, where a person waives the protection of the condition.

18

Rescission

where both parties agree to the cancellation of a contract.

19

Accord

an agreement between the parties to a contract to accept different performance in satisfaction of the obligation.

20

Satisfaction

the performance which replaced the previously agreed-upon form of performance.

21

Novation

an agreement between the parties to an existing contract to the substitution of a new party.

22

After a novation, what liability does the replaced party have?

None.

23

Novation requires ___________ agreement between the parties.

mutual

24

How can a contract be excused by a later, unanticipated event?

to be excused by a later, unanticipated event, 1) something must happen between the contract formation and the completion of each side's performance; 2) the event must be unforeseen; and 3) the event makes performance impossible, commercially impracticable, or frustrate the purpose of the performance.

25

If the performance to be rendered under the contract becomes only partially impossible, the duty . . .

may be discharged only to that extent.

26

Temporary impossibility _______________ contractual duties.

suspends

27

If a party partially performed before the impossibility arose, what result?

the party who has partially performed has the right to recover in quasi-contract at the contract rate or the reasonable value of his performance.

28

When does death discharge a contract?

where the person who dies is necessary to the performance of the contract.

29

If a building under construction is destroyed, is the contract relieved from completing the building?

No, the contractor is not relieved from having to perform.

30

Where a building under construction is destroyed before it is completed, and the destruction was not because of the contractor, what result?

the contractor will be allowed extra time to complete the performance.

31

Where a building under construction is destroyed before it is completed, and the destruction is because of the constructor, what result?

the constructor is required to finish the job by the original deadline.

32

Where a contractor is remodeling or fixing a building, and the building is destroyed before the completion of the work, to what damages is the constructor entitled?

restitution damages for the work already performed.