Performance, Breach, and Damage Flashcards
(12 cards)
Conditions (Express and Constructive)
Conditions (Express and Constructive)
A condition is an event, not certain to occur, which must occur, unless its nonconcurrence is excused, in order for the party to come under an obligation to perform. Express conditions are usually signaled by words such as “only if” and constructive conditions are implied by the court based on the actions of the parties.
Excuse of Conditions
Excuse of Conditions
Normally, if a party’s duty under a contract is conditional, he does not have to perform the duty unless the condition occurs.
Breach (Material and Partial and Anticipatory Repudiation)
Material (Substantial) and Partial Breach
A contract breach is the failure of a party, without legal excuse, to perform a contractual duty that is currently due to be performed. A substantial breach is one that substantially deprives the non-breaching party of the expected benefit of the bargain. A breach is partial if the breaching party has substantially performed.
Breach (Material and Partial and Anticipatory Repudiation)
Anticipatory Repudiation
An anticipatory repudiation occurs when a party to a contract makes a positive, unconditional, and unequivocal declaration that it will not perform as required under the contract, entitlign the non-breaching party to seek damages immediately. AR only applies to bilateral contracts.
Obligations of Good Faith and Fair Dealing
Obligations of Good Faith and Fair Dealing
Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. Good faith means honesty in fact and the observance of reasonable commerical standards of fair dealing.
Express and Implied Warranties in Sale of Goods Contracts
Express and Implied Warranties in Sale of Goods Contracts
A warranty is an assurance by one party to a contract that a good will meet certain specifications whereby the promisor agrees to indemnify the promisee for any loss if the fact warranted proves untrue. The UCC creates two implied warranties: the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. These implied warranties mean that the goods being sold are reasonably fit for ordinary uses for which they are manufactured and are of average quality.
Other Performance Matters
Cure
Other Performance Matters
Identification
If goods identified in the contract are destroyed without fault by either party before the risk of loss passes to the buyer, the seller does not have to perform, but if the goods are not identified, the seller has to prove impracticability.
Other Performance Matters
Notice
Other Performance Matters
Risk of Loss
Under the UCC, risk of loss in a shipment contract shifts to the buyer as soon as the seller completes their delivery obligations whereas risk of loss in a destination contract passes to the buyer when the goods are duly so tendered as to enable the buyer to take delivery.
Impossibility, Impracticability, and Frustration of Purpose
Impossibility
If a party is under an immediate duty to perform, the duty to perform might be discharged by impossibility, impracticability, or frustration of purpose. To claim impossibility, impracticability, or frustration of purpose, the non-occurrence of the event that caused the I, I, or FP, there must have been a basic assumption of the parties in making the contract, and that neither expressly or impliedly assumed the risk of the event occurring.
Discharge of Duties
Accord and Satisfaction, Substituted Contract, Novation, Rescission, and Release
