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e) Anticipatory repudiation, prospective inability to perform, and adequate assurance of performance.
(1) If either party to a wholly executory bilateral contract, before the time set for performance, repudiates the contract by words manifesting her apparent intent not to render the performance she has promised, the other party may treat such anticipatory repudiate as a present, ___ ___ of contract and bring an ____ ____ for the ___ ___ of the promised performance.
i) If either party to a wholly executory bilateral contract, before the time set for performance, repudiates the contract by words manifesting her apparent intent not to render the performance she has promised, the other party may treat such anticipatory repudiate as a present, material breach of contract and bring an immediate action for the entire value of the promised performance.
ii) What is the purpose of the anticipatory repudiation doctrine?
(1) The purpose of the rule is to avoid forcing the innocent party to remain ready to perform and to tender performance on the date set in the contract.
iii) May the promisee bring an immediate action for damages when the promisor repudiates the contract before the date set for performance? [General rule—Hochster v. De La Tour\
(1) Yes (2) P was caught in a conflict: he had to either remain idle waiting for the date of performance and then sue, or obtain another job and thus lose hiss right of action against D because he could not satisfy D’s condition precedent.
iv) Does a party’s failure to perform despite repeated assurances that he would do so constitute an anticipatory repudiation? [Failure to perform when promised as anticipatory repudiation—Wholesale Sand & Gravel, inc. V. Decker]
(1) Yes (2) The manifestation of an intention to repudiate a contract may be made by words or conduct, and the refusal or inability to perform must be definite, unequivocal, and absolute.
(1) The manifestation of an intention to repudiate a contract may be made by ___ or ___, and the refusal or inability to perform must be ____, ____, and ___.
v) The manifestation of an intention to repudiate a contract may be made by words or conduct, and the refusal or inability to perform must be definite, unequivocal, and absolute.
(1) When a party demands of the other party a performance not specified in the contract, and states definitely that he will not render his promised performance unless the demand is complied with, that party commits ____ _____.
vi) When a party demands of the other party a performance not specified in the contract, and states definitely that he will not render his promised performance unless the demand is complied with, that party commits anticipatory repudiation.
(1) Once an anticipatory repudiation has occurred, the non breaching party need not continue _____. However, he must show he was ___ and ___ to ____ before the repudiation and would have ____ ___ but for the repudiation. The non breaching party may consider the repudiation as an ____ ____, or ____ until the time for performance arrives and then pursue remedies for actual breach. In the latter case, the repudiating party may ____ the repudiation at any time _____ to the time of performance.
vii) Once an anticipatory repudiation has occurred, the non breaching party need not continue performance. However, he must show eh was willing and able to perform before the repudiation and would have rendered performance but for the repudiation. The non breaching party may consider the repudiation as a n immediate breach, or wait until the time for performance arrives and then pursue remedies for actual breach. In the latter case, the repudiating party may retract the repudiation at any time prior to the time of performance.
(1) One of the contracting parties may, by her conduct, make it appear that she will be unable to perform when the time for performance arrives. This has the same effect as ____ in most instances, and the restatement (second) merges the concepts in second 250. Various actions may constitute anticipatory repudiation, including: ______, _____, ______
viii) One of the contracting parties may, by her conduct, make it appear that she will be unable to perform when the time for performance arrives. This has the same effect as anticipatory repudiation in most instances, and the restatement (second) merges the concepts in second 250. Various actions may constitute anticipatory repudiation, including: Vendors conveyance or encumbrance of the property contracted for. Vendors lack of title at the time of contracting promisor’s making an inconsistent contract with a third party.
ix) Once an anticipatory breach has been accepted as final, has the time for retraction expired? [Retraction of repudiation—United States v. Seacoast Gas Co.]
(1) Yes (2) A repudiator has the power of retraction only as long as the other party has not changed its position.
x) A repudiator has the power of retraction only as long as the other party has not ______.
(1) A repudiator has the power of retraction only as long as the other party has not changed its position.
xi) Is the reasonable time in which a buyer must cover determined by the date of the seller’s anticipatory breach? [Cover—Oloffson v. Coomer]
(1) Yes (2) This was the commercially reasonable time.
(1) The measure of damages for a buyer upon the seller’s anticipatory repudiation is the _____ between the ____ price and the price of the ____ on the date of _____, so long as it would be _____ reasonable for the ____ to cover on the date of repudiation.
xii) The measure of damages for a buyer upon the seller’s anticipatory repudiation is the difference between the contract price and the price of the goods on the date of repudiation, so long as it would be commercially reasonable for the buyer to cover on the date of repudiation.
(1) Under UCC section 2-609, either party to a contract for the sale of goods has the right to demand “____” from the other party if ____ exist for believing the other party’s performance __...____. Until such assurances are given, the first party has the right to ____.... Any unjustified failure to comply with a demand for assurance for a period exceeding 30 days constitutes a _____ of the contract as a matter of law.
xiii) Under UCC section 2-609, either party to a contract for the sale of goods has the right to demand “adequate assurances of performances” from the other party if reasonable grounds exist for believing the other party’s performance might not be tendered (e.g. insolvency). Until such assurances are given, the first p arty has the right to suspend any performance due by him. Any unjustified failure to comply with a demand for assurance for a period exceeding 30 days constitutes a repudiation of the contract as a matter of law.
xiv) Before a party may terminate a contract for failure to obtain adequate assurance of performance, must there be reasonable grounds for insecurity? [Inadequate grounds for insecurity—Pittsburgh Des Moines Steel Co. v. Brookhaven Manor Water co.]
(1) Yes (2) P would only have a right to demand assurances if it had reasonable grounds for insecurity.
xv) Does a party have the right to demand adequate assurances of further performance when reasonable grounds arise to believe that the other party will commit a breach by nonperformance of a long term electricity supply contract governed by New York Law if the other party is solvent and the contract is n not governed by the UCC? [Non UCC application—Norcon Power Partners v. Niagara Mohawk Power Corp]
(1) Yes (2) A demand for adequate assurances is an effective means of addressing the dilemma faced by a promise concerned about the other party’s ability to perform.
e) Anticipatory repudiation, prospective inability to perform, and adequate assurance of performance.
(1) If either party to a wholly executory bilateral contract, before the time set for performance, repudiates the contract by words manifesting her apparent intent not to render the performance she has promised, the other party may treat such anticipatory repudiate as a present, ___ ___ of contract and bring an ____ ____ for the ___ ___ of the promised performance.
i) If either party to a wholly executory bilateral contract, before the time set for performance, repudiates the contract by words manifesting her apparent intent not to render the performance she has promised, the other party may treat such anticipatory repudiate as a present, material breach of contract and bring an immediate action for the entire value of the promised performance.
ii) What is the purpose of the anticipatory repudiation doctrine?
(1) The purpose of the rule is to avoid forcing the innocent party to remain ready to perform and to tender performance on the date set in the contract.
iii) May the promisee bring an immediate action for damages when the promisor repudiates the contract before the date set for performance? [General rule—Hochster v. De La Tour\
(1) Yes (2) P was caught in a conflict: he had to either remain idle waiting for the date of performance and then sue, or obtain another job and thus lose hiss right of action against D because he could not satisfy D’s condition precedent.
iv) Does a party’s failure to perform despite repeated assurances that he would do so constitute an anticipatory repudiation? [Failure to perform when promised as anticipatory repudiation—Wholesale Sand & Gravel, inc. V. Decker]
(1) Yes (2) The manifestation of an intention to repudiate a contract may be made by words or conduct, and the refusal or inability to perform must be definite, unequivocal, and absolute.
(1) The manifestation of an intention to repudiate a contract may be made by ___ or ___, and the refusal or inability to perform must be ____, ____, and ___.
v) The manifestation of an intention to repudiate a contract may be made by words or conduct, and the refusal or inability to perform must be definite, unequivocal, and absolute.
(1) When a party demands of the other party a performance not specified in the contract, and states definitely that he will not render his promised performance unless the demand is complied with, that party commits ____ _____.
vi) When a party demands of the other party a performance not specified in the contract, and states definitely that he will not render his promised performance unless the demand is complied with, that party commits anticipatory repudiation.
(1) Once an anticipatory repudiation has occurred, the non breaching party need not continue _____. However, he must show he was ___ and ___ to ____ before the repudiation and would have ____ ___ but for the repudiation. The non breaching party may consider the repudiation as an ____ ____, or ____ until the time for performance arrives and then pursue remedies for actual breach. In the latter case, the repudiating party may ____ the repudiation at any time _____ to the time of performance.
vii) Once an anticipatory repudiation has occurred, the non breaching party need not continue performance. However, he must show eh was willing and able to perform before the repudiation and would have rendered performance but for the repudiation. The non breaching party may consider the repudiation as a n immediate breach, or wait until the time for performance arrives and then pursue remedies for actual breach. In the latter case, the repudiating party may retract the repudiation at any time prior to the time of performance.
(1) One of the contracting parties may, by her conduct, make it appear that she will be unable to perform when the time for performance arrives. This has the same effect as ____ in most instances, and the restatement (second) merges the concepts in second 250. Various actions may constitute anticipatory repudiation, including: ______, _____, ______
viii) One of the contracting parties may, by her conduct, make it appear that she will be unable to perform when the time for performance arrives. This has the same effect as anticipatory repudiation in most instances, and the restatement (second) merges the concepts in second 250. Various actions may constitute anticipatory repudiation, including: Vendors conveyance or encumbrance of the property contracted for. Vendors lack of title at the time of contracting promisor’s making an inconsistent contract with a third party.
ix) Once an anticipatory breach has been accepted as final, has the time for retraction expired? [Retraction of repudiation—United States v. Seacoast Gas Co.]
(1) Yes (2) A repudiator has the power of retraction only as long as the other party has not changed its position.
x) A repudiator has the power of retraction only as long as the other party has not ______.
(1) A repudiator has the power of retraction only as long as the other party has not changed its position.
xi) Is the reasonable time in which a buyer must cover determined by the date of the seller’s anticipatory breach? [Cover—Oloffson v. Coomer]
(1) Yes (2) This was the commercially reasonable time.
(1) The measure of damages for a buyer upon the seller’s anticipatory repudiation is the _____ between the ____ price and the price of the ____ on the date of _____, so long as it would be _____ reasonable for the ____ to cover on the date of repudiation.
xii) The measure of damages for a buyer upon the seller’s anticipatory repudiation is the difference between the contract price and the price of the goods on the date of repudiation, so long as it would be commercially reasonable for the buyer to cover on the date of repudiation.
(1) Under UCC section 2-609, either party to a contract for the sale of goods has the right to demand “____” from the other party if ____ exist for believing the other party’s performance __...____. Until such assurances are given, the first party has the right to ____.... Any unjustified failure to comply with a demand for assurance for a period exceeding 30 days constitutes a _____ of the contract as a matter of law.
xiii) Under UCC section 2-609, either party to a contract for the sale of goods has the right to demand “adequate assurances of performances” from the other party if reasonable grounds exist for believing the other party’s performance might not be tendered (e.g. insolvency). Until such assurances are given, the first p arty has the right to suspend any performance due by him. Any unjustified failure to comply with a demand for assurance for a period exceeding 30 days constitutes a repudiation of the contract as a matter of law.
xiv) Before a party may terminate a contract for failure to obtain adequate assurance of performance, must there be reasonable grounds for insecurity? [Inadequate grounds for insecurity—Pittsburgh Des Moines Steel Co. v. Brookhaven Manor Water co.]
(1) Yes (2) P would only have a right to demand assurances if it had reasonable grounds for insecurity.
xv) Does a party have the right to demand adequate assurances of further performance when reasonable grounds arise to believe that the other party will commit a breach by nonperformance of a long term electricity supply contract governed by New York Law if the other party is solvent and the contract is n not governed by the UCC? [Non UCC application—Norcon Power Partners v. Niagara Mohawk Power Corp]
(1) Yes (2) A demand for adequate assurances is an effective means of addressing the dilemma faced by a promise concerned about the other party’s ability to perform.