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13 Cards in this Set

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xli) Promises implied from express conditions—an express condition may by its nature give rise to additional implied promises. xliii) Conditions of satisfaction xlix) Excuse
xlii) Does a party undertake an implied promise to use reasonable efforts to fulfill an express condition precedent that only he can fulfill? [reasonable efforts—Vandadium Corp. v. Fidelity & Deposit co].
(1) Yes (2) Every contract has an implied promise that the parties will make a good faith effort to perform contract promises and conditions.
(1) In some contracts the contract specifically mentions that satisfaction is “my personal satisfaction” (ie subjective satisfaction of one of the parties). Normally, courts read the word “satisfied’ _____ and the party is under no obligation to pay unless he is _____ satisfied.
xliv) In some contracts the contract specifically mentions that satisfaction is “my personal satisfaction” (ie subjective satisfaction of one of the parties). Normally, courts read the word “satisfied’ literally and the party is under no obligation to pay unless he is personally satisfied.
(1) Other contracts use the word satisfaction without specifically indicating that it is the personal satisfaction of one of the parties; ie if the work is performed satisfactorily etc. In this case, the basis for determining satisfactory performance depends on the _____ of the contract.
xlv) Other contracts use the word satisfaction without specifically indicating that it is the personal satisfaction of one of the parties; ie if the work is performed satisfactorily etc. In this case, the basis for determining satisfactory performance depends on the context of the contract.
(1) In contracts where the subject matter is not “personal,” satisfaction tends to be read as a performance that would satisfy a “____ ____.” Example: Construction contracts.
xlvi) In contracts where the subject matter is not “personal,” satisfaction tends to be read as a performance that would satisfy a “reasonable person.” Example: Construction contracts.
xlvii) Does a subjective standard apply to a satisfaction clause in a commercial building contract for a factory wall that does not require a painted finish or other aesthetic qualities? [Application in commercial context—Morin Building Products Co. v. Baystone Construction, Inc]
(1) No. (2) The majority approach is to follow the objective rule in the absence of explicit language otherwise, so long as objective standards are available to guide the fact finder.
xlviii) Does a provision that makes the time of payment depend on the occurrence of some event make the obligation to pay contingent on the occurrence of that event? Conditions of payment—Thos. J. Dyer Co. v. Bishop International Engineering Co.
(1) No. (2) The intention of the parites here is a controlling factor.
(1) The rules governing excuse of conditions operate to change or modify the express provisions of the contract by ___ some ___ upon which the parties had agreed.
l) The rules governing excuse of conditions operate to change or modify the express provisions of the contract by eliminating some condition upon which the parties had agreed.
(1) A condition will be legally excused if the party whose duty was conditional ____ ____ or ____ the occurrence of the condition.
li) A condition will be legally excused if the party whose duty was conditional wrongfully prevents or hinders the occurrence of the condition.
(1) If the nonoccurrence of a condition would cause disproportionate forfeiture, the nonoccurrence may be excused unless the condition was a ____ part of the agreed exchange.
lii) If the nonoccurrence of a condition would cause disproportionate forfeiture, the nonoccurrence may be excused unless the condition was a material part of the agreed exchange.
(1) Impracticability may excuse nonoccurrence if the conditional is not ____ and forfeiture would result by __ ____ the nonoccurrence.
liii) Impracticability may excuse nonoccurrence if the conditional is not material and forfeiture would result by not excusing the nonoccurrence.
(1) A party’s’ promise to perform a duty in spite of the nonoccurrence of a condition is generally ____.
liv) A party’s’ promise to perform a duty in spite of the nonoccurrence of a condition is generally binding.
lv) Does an insured’s failure to notify his insurer about a lawsuit until two years after being served, despite a requirement in the insurance policy for immediate notice of a lawsuit, void coverage under the policy? [Failure to notify insurer in timely manner—Aetna Casualty and Surety Co. v. Murphy]
(1) Yes (2) Traditionally courts applied a rule of strict compliance to conditions required by the agreement of the parties. (3) The modern approach favors a recognition that the occurrence of a condition may, in appropriate circumstances, be excused to avoid a disproportionate forfeiture.