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11 Cards in this Set

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c) Order of performance. d) Breach and response
(1) The order of performance is governed by an “____” condition, also termed “________,” which is neither expressly provided by the parties nor of a type the parties would have necessarily agreed upon, but is implied by the courts in the interests of fairness and justice.
i) The order of performance is governed by an “implied in law” condition, also termed “constructive condition,” which is neither expressly provided by the parties nor of a type the parties would have necessarily agreed upon, but is implied by the courts in the interests of fairness and justice.
(1) When both parties performance is expected to occur at the same time, under modern law, each party’s performance is deemed a constructive condition to the other’s obligation to perform, so that neither duty becomes absolute until ____....
ii) When both parties performance is expected to occur at the same time, under modern law, each party’s performance I s deemed a constructive condition to the other’s obligation to perform, so that neither duty becomes absolute until one party performs or tenders performance.
(1) Where one party’s performance requires a period of time and the other’s may be performed in an instance, the performance that will take a period of time is an implied in law ____ _____ to the other.
iii) Where one party’s performance requires a period of time and the other’s may be performed in an instance, the performance that will take a period of time is an implied in law condition precedent to the other.
(1) If a bilateral contract includes two promises that can be performed simultaneously, and no separate times for performance are indicated, each party’s performance is a ____ ____ ____ to ____ by the other.
iv) If a bilateral contract includes two promises that can be performed simultaneously, and no separate times for performance are indicated, each party’s performance is a constructive condition concurrent to performance by the other.
v) To recover for breach of contract, must the owner of a right of first refusal prove that, had he been notified of the impending sale, he would have been ready, willing, and able to exercise his right? [Prospective buyer’s ability to perform—Kanavos v. Hancock Bank & Trust Co.]
(1) Yes (2) In a bilateral contract containing simultaneous obligations, one party’s repudiation does not relieve the other from proving that he could perform his obligation. One party cannot put another in default unless he is ready, willing and able to perform.
(1) A party’s duty to perform is ____ on the other party’s performance of a duty to perform at an earlier time [restatement second § 237] If one party fails to perform, the other’s duty to perform may be ____.
i) A party’s duty to perform is conditional on the other party’s performance of a duty to perform at an earlier time [restatement second § 237] If one party fails to perform, the other’s duty to perform may be excused.
ii) Is an owner’s promise to pay dependant on the contractor’s performing in a workmanlike manner? [Wormkanlike performance—K& G construction Co. v. Harris]
(1) Yes (2) The modern rule that mutual promises in a contract are presumed dependant. The intent of the parties still governs. (3) The promises are clearly dependant, and by the terms of the contract, Ds’ promise to perform is precedent to P’s promise to make monthly payments.
iii) Must a party’s breach be material before it can justify the other party’s repudiation of the contract? [Material Breach—walker & Co. v. Harrison]
(1) Yes (2) Repudiation is a permissible response to a material breach, but the injured party’s determination that there has been a material breach is fraught with peril. A court might not view the breach as material, thus rendering the repudiator himself guilty of a material breach.
(1) Normally, where a contract for a price is entire, but payments installments are allowed, nonpayment of installments ____ justify the contractor in failing to complete the work. The application of this rule depends on the ____ of the parties. Failure to make installment payments may constitute a ____ breach that ____ continued performance where the circumstances show than the parties so ____.
iv) Normally, where a contract for a price is entire, but payments installments are allowed, nonpayment of installments does not justify the contractor in failing to complete the work. The application of this rule depends on the intention of the parties. Failure to make installment payments may constitute a material breach that excuses continued performance where the circumstances show than the parties so intended.
v) Is the likelihood that a party in default will cure the failure to perform a factor in determining whether the failure to perform is material?
(1) Yes. (2) Restatement second of contracts section 237