Contracts Excuse

Front 1

Excuse, No Performance

Back 1

Performance will be excused (NO breach for nonperformance) when the other party does not perform.

Front 2

Excuse, Improper Performance, UCC

Back 2

imperfect tender will excuse performance. “Imperfect Tender Rule”

Front 3

Excuse, Improper Performance, Common Law

Back 3

ONLY a material breach will excuse performance.

Front 4

Excuse, Nonoccurrence of an Express Condition

Back 4

in general, strict compliance with express conditions is required. (UNLESS enforcement of the condition would cause excessive harm).

Front 5

Excuse, Nonoccurrence of an Express Condition, Waiver

Back 5

express condition can be waived by the one party receiving the benefit.

Front 6

Excuse, Anticipatory Repudiation

Back 6

Anticipatory repudiation by one party will excuse the performance of the other party.

Front 7

Excuse, Anticipatory Repudiation, Requirements

Back 7

Anticipatory repudiation is an unambiguous statement or conduct (1) that the repudiating party will not perform and (2) made PRIOR to the time that performance was due.

Front 8

Excuse, Anticipatory Repudiation, Immediate Cause of Action

Back 8

Generally gives rise to an immediate cause of action (rather than waiting until performance was due, may treat as breached now and sue), UNLESS the claimant has already completed performance and then she must wait until performance was due.

Front 9

Excuse, Anticipatory Repudiation, Retraction

Back 9

Anticipatory repudiation can be withdrawn, UNLESS the other party has made a material change in position in reliance on the repudiation. If timely, the duty to perform is reimposed BUT performance can be delayed until adequate assurance is provided.

Front 10

Excuse, Insecurity

Back 10

(1) reasonable grounds for insecurity, (2) written demand for adequate assurance, and (3) commercially responsible to stop performance.

Front 11

Excuse, Later Contract

Back 11

mutual agreements (1) Rescission (2) Modification, (3) Novation, (4) Accord.

Front 12

Excuse, Later Contract, Rescission

Back 12

A mutual cancellation where some performance obligation arises for each party. Agreement to rescind is a new contract, consideration required UNLESS UCC.

Front 13

Excuse, Later Contract, Modification

Back 13

A substitute agreement, consideration required UNLESS UCC.

Front 14

Excuse, Later Contract, Novation

Back 14

Parties agree to substitute a new party to perform. The original party is excused from performance and no longer has any contract obligations.

Front 15

Excuse, Later Contract, Accord

Back 15

An agreement to accept alternative performance in satisfaction of the existing obligation.

Front 16

Excuse, Later Contract, Accord, Satisfaction

Back 16

completion of the alternative performance and original obligation is excused.

Front 17

Excuse, Later Contract, Accord, NOT Satisfied

Back 17

claimant may sue on the original obligation or the accord, BUT parties cannot sue on the original agreement if there has been an accord.

Front 18

Excuse, Later Unforeseen Event

Back 18

Affecting the ability of the party to perform—NOT just the cost of performing—occurs after contracting, but before performance. (1) Impossible, (2) Impracticable, (3) Unforeseen Events.

Front 19

Excuse, Later Unforeseen Event, Impossible

Back 19

performance is objectively impossible.

Front 20

Excuse, Later Unforeseen Event, Impracticable

Back 20

performance is only possible with extreme and unreasonable difficulty or expense.

Front 21

Excuse, Later Unforeseen Event, Unforeseen Events

Back 21

(1) Destruction of Subject Matter (NOT the fault of either party) (2) Death (K will survive, UNLESS deceased’s obligation are non-delegable) (3) Subsequent Law or Regulation (supervening illegality [Symbol] impossible)