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29 Cards in this Set

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xi) Substantial performance under the UCC xvi) Express Conditions
(1) If the nonconformity does not substantially impair the value of the whole contract and can be cured, the buyer must ___ the nonconforming installment if the seller gives adequate _____ of _____. Such nonconforming installment is not a breach of the contract.
xii) If the nonconformity does not substantially impair the value of the whole contract and can be cured, the buyer must accept the nonconforming installment if the seller gives adequate assurance of cure. Such nonconforming installment is not a breach of the contract.
(1) Any defect in the goods tendered by the seller (in a non installment contract) may be treated as a ____ breach by the buyer, entitling him to ____ the whole [UCC §2-601]. However, the seller may “_____” any defects in the goods tendered if he can do so within the ____ set by the contract for performance.
xiii) Any defect in the goods tendered by the seller (in a non installment contract) may be treated as a material breach by the buyer, entitling him to reject the whole [UCC §2-601]. However, the seller may “cure” any defects in the goods tendered if he can do so within the time set by the contract for performance.
xiv) Does a seller have a right to cure after the date of performance even when it has no prior knowledge of the nonconformity of the goods? [Cure after date of performance—T.W. Oil, Inc. v. Consolidated Edison Co.]
(1) Yes. (2) UCC § 2-508 gives a seller a right to cure a defective tender under certain circumstances.
xv) Cure offered when the time for performance has not yet expired is governed by UCC § 2-508(1), but cure after the date set for performance is governed by section 2-508(d). That section requires that 1), 2), 3)
(1) The buyer reject nonconforming tender (2) The seller must have had reasonable grounds to believe the tender would be acceptable; and (3) The seller must have seasonably notified the buyer of the intention to substitute a conforming tender within a reasonable time.
xvii) Define: Condition
(1) A condition is a fact or event, the occurrence or nonoccurrence of which creates or extinguishes a duty to perform on the part of the promisor. It differs from a promise; a condition typically qualifies a promise in some way.
xviii) A condition is different from a promise; a condition typically _____ a promise in some way
(1) It differs from a promise; a condition typically qualifies a promise in some way.
xix) Define: Express condition
(1) A condition explicitly set forth in the contract.
xx) Define: Implied Condition
(1) A condition that the parties would probably have agreed to if they had though about the subject. The courts generally infer whatever conditions are inherent in the promises given as necessary to the performance of the contract, such as the implied condition of good faith performance.
xxi) If a promise to perform is conditional, there can be no breach of the promise until the duty to perform is ____.
(1) Absolute.
xxii) May a party insist on exact compliance with an express condition precedent? [Strict enforcement of express condition precedent—Oppenheimer & Co. v. Oppenheimer, Appel, Dixon & Co]
(1) Yes (2) Generally, an expres condition precedent must be literally performed. But where the language is clear, the courts must give effect to an express condition.
xxiii) Define: Condition precedent (from in a case)
(1) An act or even that must occur before a duty to perform a promise in the agreement arises, although the very formation of a contract may also be contingent on the occurrence of a condition precedent.
xxiv) Is the doctrine of substantial compliance inapplicable to express conditions?
(1) Yes.
xxv) Does failure to fulfill a condition entitle the other party to consequential damages? [Damages for Breach of Condition—Merritt Hill Vineyards, inc. v. Windy Heights Vineyards, Inc]
(1) No (2) This is a failure to fulfill a condition, excusing P’s performance and entitling it to the return of its deposit.
xxvi) Define: Promise
(1) An expression of intention to act or refrain from acting in a certain manner that induces a promisee to believe a commitment has been made
xxvii) Define: Condition (in respect to promise in one of the cases)
(1) An event that must occur, unless excused, before performance under the contract becomes due.
(1) Conditions ___ or ___ the otherwise absolute duty to perform, depending on when the condition occurs.
xxviii) Conditions create or extinguish the otherwise absolute duty to perform, depending on when the condition occurs.
xxix) Define: Condition Precedent
(1) A condition that must occur in order to create an absolute duty to perform; that is, there is no duty owed until the conditional fact or event occurs.
(1) Ex: if A promises to pay B $1000 if B paints A’s house by June 1, painting the house by June 1 is a _____ to A’s absolute duty to pay B $1000. If B completes the painting by June 1, A’s promise to pay becomes ___ and ____. However, if B does not complete the painting there is no _____ by anyone.
xxx) Ex: if A promises to pay B $1000 if B paints A’s house by June 1, painting the house by June 1 is a condition precedent to A’s absolute duty to pay B $1000. If B completes the painting by June 1, A’s promise to pay becomes absolute and unconditional. However, if B does not complete the painting there is no breach of contract by anyone.
(1) A may promise to pay B $1000 and B may promise A to paint the house by June 1. The promise to paint the house by June 1 is now both a ____ and a ___ _____ to A’s duty to pay B $1000. If B fails to paint the house by June 1, he has ____ the contract and A may collect _____.. There is also a failure of a ___ ______ to A’s duty to pay, so A’s duty to pay never arises.
xxxi) A may promise to pay B $1000 and B may promise A to paint the house by June 1. The promise to paint the house by June 1 is now both a promise and a condition precedent to A’s duty to pay B $1000. If B fails to paint the house by June 1, he has breached the contract and A may collect damages. There is also a failure of a condition precedent to A’s duty to pay, so A’s duty to pay never arises.
xxxii) Define: Condition Subsequent
(1) A condition subsequent is a condition in which the occurrence of the condition extinguishes a previously absolute duty to perform.
xxxiii) If A agrees to work for B for one year unless A is drafted into the military A is under an absolute duty to perform, unless during the term he is called into service (which would extinguish his duty to perform). \\\ What kind of condition is this?
(1) A condition Subsequent
xxxiv) Are may provisions that appear to be conditions subsequent interpreted as conditions precedent before the court? Why?
(1) Yes. (2) Conditions subsequent are rare and disfavored by the court.
xxxv) Define: Conditions Concurrent
(1) Mutually dependant performances that are capable of nearly simultaneous performance by the parties.
xxxvi) Is nonoccurrence of a condition is a breach of contract
(1) NO.
xxxvii) Is Failure to perform a promise a breach of contract?
(1) Yes
xxxviii) The intent of the parties determines whether a particular provision is a promise or a condition, but in many instances, the contract itself is ambiguous.
(1) The ____ of the parties determines whether a particular provision is a promise or a condition, but in many instances, the contract itself is ambiguous.
xxxix) What are the factors considered in interpreting the parties intent in contract interpretation?
(1) Words used--(words such as provided, if, when usually indicate that a condition is involved. Words such as promise, agreed, etc, generally indicate a promise was intended. (2) Custom (3) Protection of expectancies of the parties--Doubtful provisions are normally construed as promises rather than conditions. Restatement 2nd §227
xl) When it is doubtful whether words in a contract create a promise or a condition precedent, should they be construed as creating a promise? [Preference for promises over conditions—Howard v. Federal Crop Insurance Corp.]
(1) Yes (2) Provisions are not construed as conditions precedent unless the language requires such a construction. (3) We look for intention..