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Performance Breach and discharge

Terms in this set (32)

conditions
as an event or events whose happening or non happening affects a duty of performance by one or both of the parties to a contract.
express contract
a contingency that is clearly or explicitly set forth in language of the contract
satisfaction of an express condition
makes
performance contingent upon one party's approval of the other's performance of
that condition
subjective satisfaction
amounts to approval of performance of
the condition based upon a party's honestly held opinion
Objective satisfaction
like other objective standards we=ve studied in this course, makes approval of
performance of the condition based upon whether a reasonable person would be
satisfied.
implied in fact condition
a contingency that is understood by the parties to be part of the agreement, though not expressed in the contract
implied in law condition
contingency not contained in the
language of the contract, but it is imposed by law. These are also called
constructive conditions
concurrent conditions
are mutual conditions of performance that are to take place at the same time
condition precedent
an event that must or must not occur before performance by one or both of the parties to the contract is due
condition subsequent
an event that terminates a duty of performance by one or both of the parties to the contract. For example, if a customer returns
goods which were charged or taken out on approval, this terminates the
customer's duty to pay
discharge
the termination of a contractual duty, and may occur in
several different ways - primarily either through performance or breach
performance
the fulfillment of a contractual obligation and it results in
the discharge of the performing party=s obligations.
breach
a wrongful failure to perform the terms of a contract
that gives rise to a right to damages by the injured party
material breach
a nonperformance that significantly impairs the injured party's rights under the
contract, and it discharges the injured party from any further duty under the
contract to the breaching party.
prevention of performance
this occurs when one party's substantial
interference with or prevention of performance by the other party constitutes a
material breach and discharges the other party=s obligation to perform the
contract;
perfect tender rule
a standard under the ucc stating that a seller's performance under a sales contract must strictly comply with contractual duties, and any deviation by the seller discharges the injured party from having to perform.
Substantial performance
defined as performance that is incomplete, but
is complete enough not to defeat the purpose of the contract. The party
substantially performing his/her obligations under a contract is generally allowed
Anticipatory repudiation
an inability or refusal to perform, before performance is due, that is treated as a breach, and it allows the non repudiating party to bring suit immediately.
material repudiation
an unauthorized alteration or change of any of the material (important) terms of a contract. If the alteration of a written contract is material and fraudulent, this discharges the entire contract
Mutual rescission
an agreement between the parties to terminate their
respective duties under the contract - a contract to end a contract
Substituted contract
a new contract that is accepted by both parties in
satisfaction of the parties' duties under the original contract.
Accord and Satisfaction
where the parties substitute a duty under an
earlier contract (accord), and the discharge of the prior contractual obligation
occurs by performance of the new duty (satisfaction).
Novation
is a substituted contract involving an agreement among three
parties to substitute a new third-party promisor or promisee for an existing one.
Impossibility
occurs where performance of the contract cannot be done
subjective impossibility
a particular promisor -
but not all promisors - cannot perform; subjective impossibility does not
discharge the promisor=s obligation to perform
objective impossibility
where no one can render performance,discharges the promisor's obligation to perform
destruction of subject matter
discharges a contract if it occurs without the promisor's fault
subsequent illegality
if performance becomes illegal or impractical as a result of a change in the law, the duty of performance is discharged
frustration of purpose
the principal purpose of a contract cannot be
fulfilled because of a subsequent event
commercial impracticabiilty
where performance can be accomplished only under unforseen circumstances and results in unjust hardship, the contract is discharged under the UCC and the Restatement
Bankruptcy discharge
available to a debtor who obtains an order of discharge by the bankruptcy
statute of limitations
after the statute of limitations has run, the debt is not discharged, but the creditor cannot maintain a collection action against the debtor.
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