Contracts Excuse For Non-Perf/third Party Obligations

Front 1

Excuse: Non-performance

Back 1

breach by non-performance of other party, excuses performance of non-breaching party

Front 2

Excuse: Anticipatory Repudiation (elements)

Back 2

Unambigouous statement or conduct that repudiating party would not perform prior to the time peformance was due

Front 3

Excuse: Anticipatory Repudiation ( potential responses )

Back 3

P may wait until time of performance or sue immediately for breach, treat as recission and discharge of duty. Unless P has completed performance.

Front 4

Excuse: Anticipatory Repudiation ( Retraction )

Back 4

Can be retract unless there has not been a material change in position by the other party - (i.e. reliance). Time limit is reimposed but performacne canbe delayed until adquate assurances are given.

Front 5

Excuse: Insecurity of D's performance

Back 5

when there are reasonable grounds for insecurity (prospective inablity to perform or unwillingness) a party may issue a written demand for adqueate assurance and stop peformance until such assurances are given if there are commercially reasonable grounds to stop

Front 6

Excuse: Improper Performance

Back 6

UCC: Perfect Tender Rule CL: Material Breach Rule

Front 7

Excuse: Improper Performance (Common Law)

Back 7

Material Breach rule excuses perofrmance when 1) poor quality of performance or 2) quantity / amount of performance. When substantial performance is made, it is not a material breach and does not excuse peformance. In divisable contracts, recovery can be had on a per performance basis even where a material breach occurred on the entire contract

Front 8

Excuse: Non-occurrence of expressed condition

Back 8

Performance is not due until expressed condition is met. Strict compliance with the condition is required. Expressed condition is language in a contract that limits the obligations. Triggering words: "only if, so long as, when, until etc"

Front 9

Excuse: Non-occurrence of expressed condition -- Defenses

Back 9

Waiver, Prevention/interference

Front 10

Excuse: Later Contract (Recission)

Back 10

Recission is a mutual agreeement to cancel obligations remaining under an existing contract

Front 11

Excuse: Later Contract (Accord and Satisfaction)

Back 11

Accord: a new agreement to accept a different performance in satisfaction of orginal obligation. Satisfaction: performance of new obligation. If breaching accord, non-breaching party can sue to recover accord or orignal obligation

Front 12

Modification ("substituted agreement")

Back 12

Modification is an agreement to accept a new agreement in place of the orignal CL: New consideration is required for modification. UCC: no new consideration needed -- consider SOF if new agreement requires SOF to be met

Front 13

Novation

Back 13

A mutual agreement to substitute a new party in place of an existing party. Substituted party become liable for non-performance

Front 14

Delegation

Back 14

Delegation is a unilateral transfer of obligation to a third party. Orginal party is still obligated for non-performane

Front 15

Excuse: Impossibility

Back 15

Objective test: 1) Death or physical incapacity 2) illegality 3) destruction of subject matter

Front 16

Excuse: Impossibility: Damage or destruction

Back 16

CL: performance is excused UCC: Do risk of loss analysis (on buyer - buyer pays; on seller- depends on if item was unique)

Front 17

Excuse: Impossibility: Death

Back 17

Death after contract - still obligated unless it is the performance of a special person

Front 18

Excuse: Impossibility: Illegality

Back 18

Law later passed making subject of contract illegal, performance is excused.

Front 19

Excuse: Impractability

Back 19

Subjective test: when an extreme and unreasonable difficulty or expense occurs, the non-occurrence of which was a basic assumption of the parties.

Front 20

Excuse: Frustration of Purpose

Back 20

Unforseeable supervening even destroys the purpose or value of contract, and the purpose was understood by both parties at the time of contract

Front 21

Third Party Beneficiary

Back 21

not a party to the contract, able to enforce contracts made for their benefit

Front 22

Promisor

Back 22

person making a contract to benefit 3rd party

Front 23

Promisee

Back 23

Person obtaining promise for 3rd party benefit

Front 24

Intended 3rd party Beneficiary

Back 24

only intended beneficiary have contract law rights. The intent of the parties to the contract determines if the 3rd party was intended or incidental. Intended parties are donees or creditors

Front 25

Incidental 3rd party beneficiary

Back 25

No contract law rights

Front 26

3rd party Beneficiaries: Cancellation or Modification

Back 26

3rd party must have known and relied upon contract or assented. If so 3rd party rights vested and contracts cannont then be modified or cancelled

Front 27

3rd party beneficiaries: when do rights vests

Back 27

when beneficiary manefests assent; sues; or materially changes position in justifiable reliance.

Front 28

3rd partys: Who can sue whom

Back 28

3rd vs promisor: can sue, and promisor can assert defenses against promisee; 3rd vs promisee: creditor beneficiary can sue promisee and promisor - only one satisifaciton; Donee - cannot sue unless detrimental reliance; promisee vs promisor: specific performance only

Front 29

Assignment of Rights

Back 29

a transfer of contract rights from one party to a 3rd party by another contract. Consideration is not required, but gratitutous assignments can be revoked

Front 30

Assignment of Rights: when can you NOT assign

Back 30

1) assignment substantially changes obligor's duties or risks, 2) future rights on future contracts 3) prohibited by law or no assignment provision

Front 31

Multiple Assignements

Back 31

Generally Last gratituous assginee wins; For consideration, first assignee for consideration wins (consider warranties)

Front 32

Assignments: who can sue whom

Back 32

Assignee vs Obligor: can sue, but Obligor can raise defenses but not those defenses between assignor against assignee; Assignee vs Assinor: can sue if irrevokable, but assignor is not liable if obligor is unable to perform

Front 33

Delegation of duties

Back 33

Duties are usually delegable unless involves personal judgement or special skill; changes the obligees exepctancies; or contracts that expressly prohibit delegation or assignment

Front 34

Who is liable if duties delegated

Back 34

Delagating party always liable; Delegatee liable only if received consideration from delegating party.

Front 35

Impossibility Rule

Back 35

Contractual duties will be discharged where it has become impossible to perform. The impossibility must be objective.

Front 36

Impractibility Rule

Back 36

Impractibility is found when the party under a duty to perform has encountered extreme and unreasonable difficulty and expense that was not anticipated.

Front 37

Frustration of Purpose

Back 37

Frustration of purpose exists if the purpose has become valueless because of some supervening event not the fault of the party seeking to discharge.