Contracts - Excuse Of Nonperformance

Front 1

Material Breach
(excuse b/c of OTHER party's improper performance)

Back 1

- As a result of the breach, promisee does not receive substantial benefit of the bargain.
- (Minor breach does not excuse)

Front 2

Divisable K
(excuse b/c of OTHER party's improper performance)

Back 2

Performance of each party is divided into 2+ parts under K; & the # of parts are equal
--> May recover for substantial performance (amount completed) of a divisable part though material breach of entire K.

Front 3

UCC & Perfect Tender Rule
(excuse b/c of OTHER party's improper performance)

Back 3

- Regardless of material breach, less than perfect tender gives B option of rejecting goods.

Front 4

Express/Performance Condition
(excuse b/c of NON-OCCURRENCE of a condition)

Back 4

= Mutually agreed-upon promise modifier; must be strictly complied w/.
- If in RESPONSE to an offer = conditional acceptance & NO K.
- If inside agreement, then = performance condition (if, only if, provided that, so long as, subject to, unless, when, until, in event that, on condition that)

Front 5

Generally, if a condition does not occur, then all remaining K obligations are excused.
Exceptions:

Back 5

- Estoppel: person who benefits/is protected from condition has legal power to give up protection if she makes statement BEFORE conditioning event was to occur & requires reliance.
- Waiver: if that person makes a statement AFTER the conditioning event was to occur & does not require reliance.
- Prevention: if that person hinders occurrence of the condition, then condition excused & K must be performed.
- Avoidance of Forfeiture: avoid excessive harm to party not protected by condition.

Front 6

Anticipatory Repudiation
(one party's AR excuses other party's performance)

Back 6

= Words or conduct of the promisor, prior to time set for performance of promise, which unequivocally indicate she will not perform,
allowing non-repudiator option to suspend performance & wait to sue until performance date, or to sue immediately

Front 7

Anticipatory Repudiation - Party may suspend performance on grounds of INSECURITY if meet 3 requirements:

Back 7

1) words/conduct of a party give reasonable grounds for insecurity;
2) other party can in writing demand adequate assurance;
3) that is commercially reasonable

Front 8

Rescission (cancellation of K)
(excuse by reason of a later K)

Back 8

- Must happen before a party completes performance; but if parties rescind AFTER parties complete work, then not a valid rescission & party can recover.

Front 9

Accord & Satisfaction
(excuse by reason of a later K)

Back 9

A K may be discharged by ACCORD (an agreement supported by consideration, to accept some other performance in lieu of the performance required under existing K) & SATISFACTION (performance of the accord agreement).

Front 10

Modification (substituted agreement)
(excuse by reason of a later K)

Back 10

= Agreement by parties to an existing obligation to accept a different agreement in satisfaction of existing obligation.
- Must be written
- CL requires additional consideration
- UCC requires GF only
- Parol evidence only allowed to show subsequent modifications of a K

Front 11

Novation
(excuse by reason of a later K)
(different from Delegation)

Back 11

Mutual agreement between both parties to an existing K to substitute a new party for the same performance.
- BUT a DELEGATION does not require agreement of parties & does not excuse.

Front 12

Excuse of performance by reason of a later, UNFORESEEN EVENT =

Back 12

= An unforeseen event happens after K formation but before completion of K performance, which makes performance IMPOSSIBLE, COMMERCIALLY IMPRACTICABLE, or FRUSTRATES THE PURPOSE of the performance --> discharges performance of contractual duties (but not K duty to pay $).