Performance, Modification, and Excuse Flashcards
(34 cards)
UCC: seller’s general performance obligation
transfer and deliver
UCC: buyer’s general performance obligation
inspect goods
tender payment
S obligated to put goods in the possession of a carrier, provide B with docs needed to get them, notify B that they’ve been shipped
shipment K
presumed
risk ships to B when the goods are delivered to the carrier
S agreed to tender the goods at a particular place
destination K
FOB
free on board: FOB point is the delivery point
the place where the risk transfers from S to B
FAS
free alongside
risk shifts to B when the goods are delivered at the destination
if goods are held by a bailee to be delivered w/o being moved, risk passes to B when
- B receives negot doc covering the goods
- bailee acknowledges B’s rt to possess the goods
- B rec nonnegot doc of title or other direction to deliver goods to B, obce B has had a reasonable time to present the doc or direction to the bailee
in not a shipment case, where S is a merchant, risk of loss passes to B when
B receives (takes phys possession of) the goods
in not a shipment K, where S is not a merchant, risk of loss passes to B
upon tender of delivery
if the seller breaches the K by making nonconforming tender or delivery, S keeps risk until
cure or acceptance
Modification: CL
preexisting duty rule
no modification if no consideration being offered for the mod
a promise to increase comp under an existing K is enforceable if
as a mutual mod
- both parties agree to a performance that’s diff from the one originally promised
- diff in performance is not a mere pretense
Where a promise of increased compensation is given in exchange for a performance, and that performance is rendered substantially more burdensome than anticipated by the parties when they entered the K,
unforseen circ= preexisting duty rule doesn’t apply
when is mod permitted under the UCC
no consideration needed
good faith test: can[‘t be a pretext to hide a bad faith change in terms
when there’s a “no oral modifications” clause in a K, CL & UCC?
CL: used to be totally invalid, cts will prob enforce them where a party has reasonably relied on the moral mod
UCC: presumptively valid , but may be enforceable if the disadvantaged party relies on the mod
unilateral mistake
doesn’t matter, unless other party had reason to know or it’s cause of a clerical error
mutual mistake
voidable by the disadvantaged party where
- mistaken fact is essential to the K
- both parties were mistaken
- disadvantaged party didnt bear the risk of mistake under the K
doctrine of impossibility requires
objectively impossible performance
occurrence of contingency not known to the parties at the time of contracting
doctrine of impracticability requires
caused by some unforeseen contingency
risk was neither assumed nor allocated by the parties
increase in cost of performance qould be far beyond what either party anticipated
frustration of purpose requires
party’s princ purpose in entering the K is frustrated
substantial frustration
non-occurrence of the event precipitating frustration was a basic assumption of the K
recission- consideration for the change is
discharge of the other’s duties
accord and satisfaction
accord: K under which the obligee promises to accept substituted performance in satisfaction of the obligor’s original duty
- satisfaction: performance of the accord
- consideration required
- less $ only ok if there’s a GF dispute as to the amnt owed
if 1 party anticipatorily repudiates, the other party can
imemdiately treat it as a breach, entitled to same rights and remedies. Can immediately cancel the K OR bring an action for spec perf
adequate assurance of performance: CL And UCC
UCC: in writing
- other party can suspend his performance if no response within 30d; doesn’t provide reasonable assurance; suspension is commerically reasonable/ hasn’t received the agreed-upon return
- failure to respond = breach
CL: oral comm or in writing
-same as above except for the 30d thing
