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13 Cards in this Set

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  • Back
Excuse based on other party's Breach
1. Sale of goods: If tender isn't perfect, B has 3 options: accept all, reject all, or accept any commercial units and reject rest. Whichever option B chooses, B can still get damages from the S.
Other Ks: Any breach gives the injured party the right to get damages...but only a material breach excuses the injured party from having to perform.
What's a divisible K?
Payment is made on a per unit basis.
Excuse based on the Other Party's Anticipatory Repudiation?
It operates just like a material breach.
Excuse based on a Later Agreement (4)
1. Rescission (agree to cancel K)
2. Modification (agreement replacing an existing K with a new K)
3. Accord (agreement to accept in the future a stated performance in satisfaction of an existing duty) and Satisfaction (performance of the accord).
4. Novation (agreement substituting a new party for an existing one)
Excuse Based on an Unforeseen Event that makes Performance Impossible (S's excuse)
1. Destruction of something necessary for performance
2. Death or incapacity of a person essential for performance
3. Gov't regulation or order
Destruction of something necessary for K (rarely right answer)?
1. Common law: Destruction makes performance impossible
2. A2: Same but two trick questions:
a. Were the goods destroyed "identified" to this particular contract?
b. Did B bear the risk of loss?
Excuse based on Frustration of Purpose?
This is the B's excuse.
Excuse based on Failure of an Express condition
1. Express condition
2. Satisfaction clauses
3. Conditions precedent/concurrent subsequent
4. Occurrence of condition may be excused by the later action/inaction of the person who is protected by the condition
What is an express condition?
K language that does not create an obligation, but limits obligations created by other K language (if, provided, so long as, on condition that, unless, when). Strict compliance required!
Satisfaction clauses. General rule?
Satisfaction means reasonable satisfaction.
But if job is an aesthetic one or deals with personal taste, the client's (B's) satisfaction is what matters.
Condition precedent or concurrent v. Condition subsequent?
Precedent: If this, then that.
Concurrent: as long as...
Subsequent: Until
When can occurrence of condition by excused?
1. Failure to cooperate
a. Look to who's protected by condition.
b. If that person did anything to give up protection, then he loses protection.
2. Waiver: a later statement by the protected party & reliance by the other).
List the Excuses (6)
1. Excuse Based on other party's breach
2. Excuse based on other party's anticipatory repudiation
3. Excuse based on later agreement
4. Excuse based on unforeseen event that makes performance impossible
5. Excuse based on frustration of purpose
6. Excuse based on failure of an express condition