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The consequences of non performance (Perfect Tender Rule, etc)
Terms in this set (23)
Common law.. we have
substantial performance, do ask.... did the parties' substantially perform their duties under the K?
If common law (substantial performance) ask if the breach was
If substantial performance is due, and there has been a material breach,
the non breaching parties duty has been discharged.
If substantial performance is due, and breach is NOT material
non breaching party will still have to perform (pay)
UCC (Sale of goods)
Perfect tender unless contract provides otherwise.
Under UCC, seller has a duty to
deliver perfect tender.
Perfect tender means that the seller
must deliver perfectly conforming goods unless:(1) The K provides otherwise, or (2) The K is an installment K.
Requires one party to perform its obligations precisely, with no deviation from the contract terms
Under Uniform Commercial Code (UCC) § 2-508, a nonconforming delivery of goods may be cured by the seller
(1) within the period of the parties' contract so long as the seller notifies the buyer of an intention to replace the nonconforming goods with conforming goods and delivers such replacement within that period or (2) outside the contract period so long as the seller reasonably believed that the buyer would accept the nonconforming goods and "seasonably" notifies the buyer of the seller's intention to replace the nonconforming goods with conforming goods.
Under the Uniform Commercial Code, a buyer can revoke acceptance of a nonconforming good if
an uncured defect substantially impairs the goods' value to the buyer?
If a party substantially performs its obligations under a contract, that party
will not be forced to bear the replacement cost needed to fully comply with the agreement but instead will owe the non-breaching party the difference in value between full performance and the performance received.
A party that substantially performs its obligations under a contract may recover
expectation damages for any remaining payment owed under the contract, minus an offset for defects in the party's performance.
Is a minor failure of performance a serious enough breach to justify repudiation of the entire contract?
No.... can only repudiate the K if there is a MATERIAL BREACH.
-If there is a material breach
then right to cure performance.
If there is an uncured material breach,
one has a right to breach the contract
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