Repudiation and Conditions and Promises

• Course of Performance

  A sequence of conduct between the parties to a particular transaction that exist if (1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and (2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts performance or acquiesces it in without objection.
• Promissory Conditions

  A promissory condition is both a condition and a promise that the condition will occur. There is an event that must occur before performance becomes due and there is a promise by one party that the event will happen. The non occurrence of the condition discharges the injured party from future performance obligation and entitles that party to damages for loss
• A promise is a commitment to act or refrain from acting in a specific way. A failure to perform is a breach. A breaching party may make an effort to cure in a timely manner, if they do, the other party is under obligation to perform. They are not discharged unless the breach is material.
• Independent promises

  each party's duty to render performance is separate from the other party's duty of performance
• Dependent Promises

  intend performance by one to be conditioned upon performance by another.
• Condition Precedent

  a condition which must occur before the promisor’s duty to perform arises.
• Condition Subsequent

  An event which discharges or extinguishes a duty of performance that has arisen.
• Express Conditions

  agreement using contract language like if, on the condition that, provided that etc.
• Constructive Conditions are conditions created by the court because they are not found explicitly or implicitly in the parties’ agreement. Constructive conditions permit the party to render something less than full performance and still be entitled to performance by the other party.
• Conditions of Satisfaction

  Conditions of Satisfaction are clauses in the parties’ agreement requiring performance only upon the obligor’s satisfaction. The promisor must act in good faith in determining its satisfaction or its promise is illusory. A promisor dissatisfied with the overall bargain rather than the promisee’s performance and seeks to escape the deal by claiming dissatisfaction is an act of bad faith.
• Anticipatory repudiation

  occurs when one party to a contract expresses the intent, either through words or conduct, that a promised performance will not be forthcoming. It can be expressed or implied.
• Anticipatory Repudiation (UCC)

  Under the UCC, where a party has a reasonable ground for insecurity regarding the other party’s prospective performance, it may in writing demand adequate assurance of due performance. Where such assurance are not forth coming, the non-breaching party may treat such a failure as a repudiation of the contract. The party that repudiates has 30 days to provide assurances.
• Retracting a Repudiation

  Under both UCC and common law, parties may retract its repudiation before the aggrieved party has acted in reliance upon the repudiation by material changing its position. Retraction may be by any means sufficient to provide clear and adequate notice to the innocent party that the repudiating party intends to perform.
• Responding to a Repudiation

  Upon repudiation the aggrieved party may either wait a reasonable time for performance or treat the repudiation as a present breach and resort to remedies. If the aggrieved party brings suit, it must show that if there were no repudiation that it would have been ready, willing, and able to perform its end of the bargain. Damages will be determined by any costs saved in not having to perform as well as any damages that could have been avoided by appropriate action.
• specific performance (ucc)

  1. may be decreed where goods are unique or in other proper circumstances
  2. decree for specific performance may include payment of price, damages or other relief as the court may deem fit
  3. buyer has right to replevin for goods
• Condition

  contains a promise that sets an event that must occur before duty of performance arises. Nonoccurance may be excused. Failure to comply is not a breach.
• Express Repudiation

  a clear, positive unequivocal refusal to perform.
• Implied repudiation

  conduct that the party voluntarily does something to get out of performing