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37 Cards in this Set
- Front
- Back
Excuse: Non-performance
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breach by non-performance of other party, excuses performance of non-breaching party
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Excuse: Anticipatory Repudiation (elements)
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Unambigouous statement or conduct that repudiating party would not perform prior to the time peformance was due
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Excuse: Anticipatory Repudiation ( potential responses )
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P may wait until time of performance or sue immediately for breach, treat as recission and discharge of duty. Unless P has completed performance.
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Excuse: Anticipatory Repudiation ( Retraction )
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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.
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Excuse: Insecurity of D's performance
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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
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Excuse: Improper Performance
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UCC: Perfect Tender Rule CL: Material Breach Rule
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Excuse: Improper Performance (Common Law)
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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
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Excuse: Non-occurrence of expressed condition
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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"
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Excuse: Non-occurrence of expressed condition -- Defenses
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Waiver, Prevention/interference
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Excuse: Later Contract (Recission)
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Recission is a mutual agreeement to cancel obligations remaining under an existing contract
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Excuse: Later Contract (Accord and Satisfaction)
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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
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Modification ("substituted agreement")
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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
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Novation
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A mutual agreement to substitute a new party in place of an existing party. Substituted party become liable for non-performance
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Delegation
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Delegation is a unilateral transfer of obligation to a third party. Orginal party is still obligated for non-performane
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Excuse: Impossibility
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Objective test: 1) Death or physical incapacity 2) illegality 3) destruction of subject matter
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Excuse: Impossibility: Damage or destruction
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CL: performance is excused UCC: Do risk of loss analysis (on buyer - buyer pays; on seller- depends on if item was unique)
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Excuse: Impossibility: Death
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Death after contract - still obligated unless it is the performance of a special person
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Excuse: Impossibility: Illegality
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Law later passed making subject of contract illegal, performance is excused.
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Excuse: Impractability
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Subjective test: when an extreme and unreasonable difficulty or expense occurs, the non-occurrence of which was a basic assumption of the parties.
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Excuse: Frustration of Purpose
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Unforseeable supervening even destroys the purpose or value of contract, and the purpose was understood by both parties at the time of contract
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Third Party Beneficiary
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not a party to the contract, able to enforce contracts made for their benefit
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Promisor
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person making a contract to benefit 3rd party
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Promisee
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Person obtaining promise for 3rd party benefit
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Intended 3rd party Beneficiary
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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
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Incidental 3rd party beneficiary
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No contract law rights
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3rd party Beneficiaries: Cancellation or Modification
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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
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3rd party beneficiaries: when do rights vests
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when beneficiary manefests assent; sues; or materially changes position in justifiable reliance.
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3rd partys: Who can sue whom
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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
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Assignment of Rights
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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
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Assignment of Rights: when can you NOT assign
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1) assignment substantially changes obligor's duties or risks, 2) future rights on future contracts 3) prohibited by law or no assignment provision
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Multiple Assignements
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Generally Last gratituous assginee wins; For consideration, first assignee for consideration wins (consider warranties)
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Assignments: who can sue whom
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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
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Delegation of duties
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Duties are usually delegable unless involves personal judgement or special skill; changes the obligees exepctancies; or contracts that expressly prohibit delegation or assignment
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Who is liable if duties delegated
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Delagating party always liable; Delegatee liable only if received consideration from delegating party.
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Impossibility Rule
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Contractual duties will be discharged where it has become impossible to perform. The impossibility must be objective.
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Impractibility Rule
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Impractibility is found when the party under a duty to perform has encountered extreme and unreasonable difficulty and expense that was not anticipated.
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Frustration of Purpose
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Frustration of purpose exists if the purpose has become valueless because of some supervening event not the fault of the party seeking to discharge.
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