Contracts Ii Endterm

Front 1

Luttinger v. Rosen, 316 A.2d 757 (Conn. 1972)

Back 1

A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. If the condition precedent is not fulfilled the contract is not enforceable.

Front 2

Internatio-Rotterdam, Inc. v. River Brand Rice Mills, Inc., 259 F.2d 137 (2nd Cir. 1958)

Back 2

When conditions such as peak season and congested throughput demand prompt performance, then timely notice or delivery can become the essence of the agreement and thus serve as a condition precedent which may confer the right of prompt cancellation of a contract.

Front 3

Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So. 2d 840 (Fla. 1977)

Back 3

Ambiguous contractual terms which may dictate the existence of conditions precedent are determined as matter of law, and in the case of contractor to subcontractor relationships, with a presumption that the subcontractor does not assume the risk of the ultimate customer’s failure to pay the contractor.

Front 4

Gibson v. Cranage, 39 Mich. 49 (1878)

Back 4

Subjective personal satisfaction with the outcome can be a condition to liability in contract. Where parties thus deliberately enter into an agreement which violates no rule of public policy, and which is free from all taint of fraud or mistake, there is no hardship whatever in holding them bound by it.

Front 5

McKenna v. Vernon, 101 A. 919 (Pa. 1917)

Back 5

Course of performance in waiving a term of contract can act to preclude the term from becoming a condition precedent.

Front 6

Hicks v. Bush, 180 N.E.2d 425 (N.Y. 1962)

Back 6

Parol evidence of a condition precedent to a written agreement may be admitted if the condition precedent does not contradict any conditions precedent in the written agreement.

Front 7

Kingston v. Preston, 99 Eng. Rep. 437 (King’s Bench 1773)

Back 7

In a conditional and dependent covenant, performance of one party depends on the prior performance of the other and, until the prior condition is performed, the other party will not be held to performance of his covenant.

Front 8

Stewart v. Newbury, 115 N.E. 984 (N.Y. 1917)

Back 8

Where an entire contract is made to perform work without agreement as to time or manner of payment, the work must be substantially performed before payment can be demanded. Progress payments may not be inferred.

Front 9

Jacob & Youngs v. Kent, 230 N.Y. 239 (1921)

Back 9

A substantial performance out of compliance with an express term may fail to meet a condition precedent to payment if the breach is material, but the law will be slow to impute the materiality, in the silence of the parties, where the significance of the default is grievously out of proportion to the oppression of the forfeiture.

Front 10

Plante v. Jacobs, 10 Wis. 2d 567 (1960)

Back 10

The “diminished value” rule applies when a party substantially, but incompletely performs under contract. It allows damages for the difference between the value resulting from incomplete performance, and the value if performance were in strict compliance with the agreement.

Front 11

Gill v. Johnstown Lumber Co., 151 Pa. 534 (1892)

Back 11

A contract which consists of several distinct items, with prices to be paid apportioned among the items either explicitly, or in a manner which can be implied in law, is severable.

Front 12

Britton v. Turner, 6 N.H. 481 (1834)

Back 12

Mere breach of contract does not result in forfeiture, but rather in the value of enrichment less proven damages

Front 13

Kirkland v. Archbold, 113 N.E.2d 496 (Ohio Ct. App. Cuyahoga County, 1953)

Back 13

A defaulting contractor not found to willfully abandon or breach his contract may be afforded relief in quantum meruit, less damages suffered by the other party.

Front 14

REST 2d CONTRACTS 347 Damages Formula

Back 14

Damages = (a) loss in value + (b) other loss - (c) cost and loss avoided

Front 15

Walker & Co. v. Harrison, 81 N.W.2d 352 (Mich. 1957)

Back 15

Whether a breach is material depends on 6 factors: 1. Anticipated benefit; 2. Adequate compensation in damages; 3. Part performance; 4. Hardship on the breachor; 5. Culpability of the breachor; and 6. Uncertainty of the breachor’s future performance.

Front 16

K&G Construction Co. v. Harris, 164 A.2d 451 (Md. Ct. App. 1960)

Back 16

Failure to perform in a workmanlike manner may be found as a material breach, excusing the injured party from performance. The injured party may treat the failure as a partial breach, ultimately leading to a duty of continued performance by the breaching party.

Front 17

Iron Trade Products Co. v. Wilkoff Co., 116 A. 150 (Pa. 1922)

Back 17

Mere difficulty in performance will not excuse a breach of contract.

Front 18

New England Structures, Inc. v. Loranger, 234 N.E.2d 888 (Mass. 1968)

Back 18

Notice of termination with a short period specified is not intended as an opportunity to cure the defect. The intention is to give the breaching party an opportunity to clear the premises and avoid injury.

Front 19

Hochster v. De La Tour, 118 Eng. Rep. 922 (Queen’s Bench 1853)

Back 19

Repudiation of a contract before the date of performance gives the aggrieved party an immediate cause of action on the contract.

Front 20

Kanavos v. Hancock Bank & Trust Co., 479 N.E.2d 168 (Mass. 1985)

Back 20

To recover for breach of contract for right of first refusal, the plaintiff must show he is ready, willing, and able to perform.

Front 21

McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101 (3rd Cir. 1955)

Back 21

Anticipatory repudiation cannot be supported by the mere equivocal indication of prospective nonperformance.

Front 22

C.L. Maddox, Inc. v. Coalfield Services, Inc., 51 F.3d 76 (7th Cir. 1995)

Back 22

After a substantial performance, request for assurances and exposure to risk, a breach may be excused by anticipatory repudiation evinced by the conduct of the other party.

Front 23

Cosden Oil & Chemical Co. v. Karl O. Helm Aktiengesellschaft, 736 F.2d 1064 (5th Cir. 1984)

Back 23

An aggrieved buyer’s damages in the context of a seller’s anticipatory repudiation may be calculated with a market price set at notice of repudiation plus a commercially reasonable time to either effect cover or claim damages.

Front 24

U.S. v. Seacoast Gas Co., 204 F.2d 709 (5th Cir. 1953)

Back 24

The time allowed for retraction of an anticipatory repudiation does not have to extend to the point an aggrieved buyer enters into a contract for cover.

Front 25

Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co., 532 F.2d 572 (7th Cir. 1976)

Back 25

The entitlement to demand assurances of performance must be predicated upon reasonable grounds for insecurity with respect to performance of the other party.

Front 26

Norcon Power Partners v. Niagara Mohawk Power Corp., 705 N.E.2d 656 (N.Y. 1998)

Back 26

Adoption of REST 2d CONTRACTS for demand of assurances in a non-UCC context.

Front 27

Stees v. Leonard, 20 Minn. 494 (1874)

Back 27

Nothing will excuse the performance of an express contract, which is neither unlawful nor impossible, but the act of God, the law, or the other party to the contract.

Front 28

Mineral Park Land Co. v. Howard, 156 P. 458 (Cal. 1916)

Back 28

There may be conditions which make performance so expensive as to be impracticable, and therefore legally impossible.

Front 29

Taylor v. Caldwell, 122 Eng. Rep. 309 (King’s Bench 1863)

Back 29

An act of God may excuse all parties from performance of a contract.

Front 30

Transatlantic Financing Corp. v. U.S., 363 F.2d 312 (D.C.Cir. 1966)

Back 30

Impracticality or impossibility of performance are not synonyms for unprofitable performance.

Front 31

Selland Pontiac-GMC, Inc. v. King, 384 N.W.2d 490 (Minn. Ct. App. 1986)

Back 31

Acquiescence in a material term can become an excuse to breach later.

Front 32

Canadian Industrial Alcohol Co. v. Dunbar Molasses Co., 179 N.E. 383 (N.Y. 1932)

Back 32

A force majeure clause does not mean you do not have to try.

Front 33

Eastern Air Lines, Inc. v. Gulf Oil Corp., 415 F.Supp. 429 (S.D.Fla. 1975)

Back 33

Commercial impracticability defenses under UCC 2-614 and 2-615 are hard to get to fly.

Front 34

Krell v. Henry, 2 K.B. 740 (Ct. App. 1903)

Back 34

When parties bargain an exchange in anticipation of a mutually known event, the non-occurrence of that event may serve as frustration of purpose for the contract, discharging both parties from further performance.

Front 35

Swift Canadian Co. v. Banet, 224 F.2d 36 (3rd Cir. 1955)

Back 35

If you claim frustration of purpose, then it had better be before the FOB term makes it your property.

Front 36

Chase Precase Corp. v. John J. Paonessa Co., 566 N.E.2d 603 (Mass. 1991)

Back 36

Under doctrine of “frustration of purpose,” where, after contract is made, party's principal purpose is substantially frustrated without his fault by occurrence of event the nonoccurrence of which was a basic assumption on which contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.

Front 37

Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265 (7th Cir. 1986)

Back 37

The doctrine of frustration does not apply in cases of explicitly assigned risk – such as a fixed price contract which assigns risk of price increases to the seller and the risk of price decreases to the buyer.

Front 38

Young v. City of Chicopee, 72 N.E. 63 (Mass. 1904)

Back 38

When both parties are excused from performance by an unforeseen event, the risk is split between them, and restitution will therefore also be split between them.

Front 39

Lawrence v. Fox, 20 N.Y. 268 (N.Y. 1859)

Back 39

An action lies for a creditor beneficiary on a promise made upon valid consideration for the benefit of a third person not privy to the consideration.

Front 40

Seaver v. Ransom, 224 N.Y. 233 (N.Y. 1918)

Back 40

A donee beneficiary can maintain an action against executors to enforce a contract made by the decedent in which the decedent undertook an obligation to make an intended gift.

Front 41

Rathke v. Corrections Corporation of America, Inc., 153 P.3d 303 (Alaska 2007)

Back 41

A third party can be a beneficiary of a parallel contract in which terms of a class action settlement agreement are incorporated into a contract between the first two parties for the benefit of the third party.

Front 42

Gianfillippo v. Northland Casualty Co., 861 P.2d 308 (Okla. 1993)

Back 42

An incidental beneficiary of an insurance contract does not have standing to bring a bad faith claim against the insurer.

Front 43

Verni v. Cleveland Chiropractic College, 212 S.W. 3d 150 (Mo. 2007)

Back 43

An incidental beneficiary of an employment contract does not have standing to assert a claim of breach of contract as a third-party beneficiary.

Front 44

Grigerik v. Sharpe, 721 A.2d 526 (Conn. 1998)

Back 44

Foreseeability is not sufficient to confer third-party beneficiary status; and the intent of both parties, not just one party, to contract determines whether a third party is entitled to third-party beneficiary status.

Front 45

Sally Beauty Co. v. Nexxus Products Co., 801 F.2d 1001 (7th Cir. 1986)

Back 45

The duty of performance under an exclusive distributorship may not be delegated to a competitor in the market place -- or the wholly-owned subsidiary of a competitor -- without the obligee's consent.

Front 46

Herzog v. Irace, 594 A.2d 1106 (Me. 1991)

Back 46

After receiving notice of the assignment, the obligor cannot lawfully pay the amount assigned either to the assignor or to his other creditors and if the obligor does make such a payment, he does so at his peril because the assignee may enforce his rights against the obligor directly

Front 47

Bel-Ray Company v. Chemrite (Pty) Ltd., 181 F.3d 435 (3rd Cir. 1999)

Back 47

Contractual provisions limiting or prohibiting assignments operate only to limit a parties' right to assign the contract, but not their power to do so, unless the parties' manifest an intent to the contrary with specificity.

Front 48

Delacy Investments, Inc. v. Thurman & Re/Max Real Estate Guide, Inc., 693 N.W.2d 479 (Minn. App. 2005)

Back 48

An assignee of a claim takes no other or greater rights than the original assignor and cannot be in a better position than the assignor.

Front 49

Chemical Bank v. Rinden Professional Association, 498 A.2d 706 (N.H. 1985)

Back 49

A waiver of defense against a value assignee, retaining rights of defense against an assignor, in an assignment of a lease-sales contract is enforceable against the lessee-purchaser.

Front 50

U.S. Claims, Inc. v. Flomenhaft & Cannata, LLC, 519 F.Supp. 2d 515 (E.D.Pa. 2006)

Back 50

U.S. Claims doesn’t get the money because their claim is subordinate to Stillwater’s secured debt.