Contracts -- Excuses For Non-Performance*

Front 1

Excuse of Nonperformance/Improper Performance -- Material Breach

(Services only, never goods)

Back 1

For excuse from non/improper performance

Repeated Ks, if performance less than 50% = Material Breach

OPPOSED to: Substantial Performance

Front 2

Excuse of Nonperformance/Improper Performance -- Article 2 alternative for Material Breaches

Back 2

DO perfect tender and installment contract principles

Front 3

Excuse of Nonperformance/Improper Performance -- Divisible Ks

Back 3

Contract law allows recovery for substantial performance of a divisible part even when material breach for entire K

payment = per task

Front 4

Excuse of Nonperformance/Improper Performance -- Express Condition

Back 4

Limits obligations created by other K language

require STRICT COMPLIANCE

Can be EXTINGHUISHED with:
1) waiver (by benefitted party)
2) prevention (by benefitted party)

"only if, provided that, so long as, subject to, in the event that, unless, when, until, on condition that"

Front 5

Excuse of Nonperformance/Improper Performance -- Condition Precedent/Subsequent

Back 5

PRECEDENT -- condition must occur before any obligation to perform

SUBSEQUENT -- occurrence after performance excuses any further performance

Front 6

Excuse of Nonperformance/Improper Performance -- Anticipatory Repudiation

Back 6

Unambiguous statement or conduct indicating:
1) repudiating party will not perform
2) made prior to time performance was due

CAN LEAD TO:
1) excuse
2) claim for damages UNLESS claimant has already finished performance (then must wait for date of K breach to occur before claim for damages can be made)

RETRACTION possible when repudiating party takes back their position BEFORE any material changes in positions

Front 7

Excuse of Nonperformance/Improper Performance -- Insecurity qw(Article 2 only) qw(3)

Back 7

If words/conduct give "reasonable grounds for insecurity", then other party can:

1) Demand adequate assurance
2) If commercially r/s
3) Can suspend performance until adequate assurance

Front 8

Excuse of Nonperformance/Improper Performance -- Excuse by Later Contract

Back 8

RECISSION -- depends if performance still remaining from both parties

ACCORD: later agreement in which one party to contract agrees to accept performance different from that originally promised

SATISFACTION: performance on the accord; discharges both accord and original debt

(IF and THEN)

Front 9

Excuse of Nonperformance/Improper Performance -- Modification

Back 9

Agreement by parties to an existing obligation to accept a different agreement in satisfaction of existing condition

Front 10

Excuse of Nonperformance/Improper Performance -- Novation (4)

Back 10

Later agreement that changes party that is going to perform K terms; excuse of performance (by substituting party)

1) previous valid contract
2) an agreement among all parties, including new party
3) immediate extinguishments of contractual duties as between original contracting parties
4) valid new contract

Front 11

Excuse of Nonperformance/Improper Performance -- Delegation

Back 11

When a non-K party substituted as being responsible for performance

Does not require agreement of parties and does not excuse

Front 12

Excuse of Nonperformance/Improper Performance -- Impossibility/Impracticability

Back 12

Impossibility -- cannot be done by anyone (objective)

Impracticability -- cannot be done without undue hardship or expense

because of unforeseen circumstances that the parties could not anticipate at the time of K formation

Service Ks - neither party bears risk of loss

UCC -- generally seller assumes risk

Front 13

Excuse of Nonperformance/Improper Performance -- Impossibility/Impracticability --

DEATH

Back 13

Death does not make K obligation disappear

EXCEPTION -- Personal Service K (both parties must have intended specific person perform K)

Front 14

Excuse of Nonperformance/Improper Performance -- Impossibility/Impracticability --

Later Law or Regulation

Back 14

K made illegal? Impossible.

K purpose made legal? Frustration of Purpose.