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9 Cards in this Set
- Front
- Back
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Other party's breach may excuse non-performance:
1) Sale of Goods (Art 2): If performance is not perfect ("Perfect Tender Rule"), buyer can accept all; reject all; accept some, reject all. Still entitled to damages |
2) Common Law K: Injured party can recover damages for any breach. Only material breach provides excuse. [consider recovery in quasi-K for reasonable value of work done]
--> Divisible K: where payment on a per unit basis, breaching party can recover K price for any unit on which he has substantially performed |
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Anticipatory repudiation provides excuse for non-performance unless repudiation is retracted. Operates like a material breach.
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Can retract so long as other party hasn't acted in reliance (diff. from material breach)
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Later agreement by parties excuse non-performance:
- Rescission - Modification - Accord and satisfaction - Novation |
Rescission: agreement to cancel K
Modification: agreement to replace existing K w/new one Accord & Satisfaction: accord is agreement to accept performance in future satisfaction of an existing duty. Satisfaction is performance of accord. Original debt extinguished only when accord is satisfied. Novation: Agreement to substitute new party for existing one. |
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Impossibility/impracticability are reasons for non-performance.
*Rarely excuses a seller on MBE. |
Later unforeseen event makes performance impossible (CL) or impracticable (Article 2) (much harder/more expensive) may provide seller with excuse for non-performance.
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Impossibility/Impracticability:
1) Destruction of something necessary for performance 2) Death/Incapacity of Essential Person 3) Supervening Government Regulation 4) Increase in seller's costs |
CL: destruction provides excuse for non performance.
Art. 2 adopts same general rule as CL but has 2 tricks: * Seller excused only if damaged/destroyed goods have been "identified to the contract." * Seller who bore ROL when goods were damaged or destroyed is excused by impracticability, but a buyer is not! MBE: seller's costs increase usually insufficient to excuse seller. TX: look at absolute amount of increase and relative increase. |
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Frustration of Buyer's Primary Purpose
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If seller knew of purpose, buyer is excused
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Failure of an Express Condition** [MBE]
- Limits obligations created by other K language; doesn't create an independent obligation - look for words like "if", "as long as", "when," "provided that," "on condition that" and "unless" |
Strict compliance required ****
Satisfaction clauses: measured by a reasonable person standard, unless K deals with art or matters of personal taste |
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Types of Express Condition
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-"if"- condition precedent ***
- as long as - condition concurrent - until - condition subsequent (performance first, occurrence of condition cuts it off) |
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Excusing occurrence of a condition
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Occurrence of a condition may be excused by later action of person protected by condition. *Every express condition protects somebody.
- Failure to Cooperate - Waiver (protected party voluntarily relinquishes protection of condition) |
