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CONTRACTS II - 1997 Joey Dudek

Definition of parol evidence rule: If there is a binding agreement that is either completely or partially integrated, evidence of prior agreements or negotiations is NOT admissible to contradict a term of the writing

integration: process of expressing the parties’ intent in a way that does NOT allow either party to contradict expression

2 types of integration:

i. complete: cannot be contradicted OR supplemented

ii. partial: cannot be contradicted, but may be supplemented by evidence of consistent

additional terms

integrated agreement: writing constituting final expression of parties intent as to one or more terms

5 questions to ask to determine if P/E rule. applies:

1. Is #2 (2 nd agreement) a binding agreement?

If NO, P/E rule does NOT apply

Evidence is admissible to show that an agreement is NOT binding b/c of lack of consideration, fraud, mistake, unconscionability, etc.

2. Is #2 an integrated agreement?

If NO, P/E rule does NOT apply

3. Is #2 a COMPLETELY integrated agreement?

§ 210- an agreement that is intended by both parties to be a complete and exclusive statement of the terms of the agreement

4. Is #1 inconsistent w/ #2?

if NO (1 and 2 are consistent), then P/E rule does NOT apply

5. Is #1 w/in the scope of #2?

if NO, then P/E rule does NOT apply

general rule: parol evidence is ALWAYS admissible to show that agreement is voidable

P/E rule DOES NOT APPLY to evidence that shows:

1. writing was never intended to be operative

2. writing was to be effective ONLY upon happening of event

3. k lacks consideration

4. k is voidable due to duress, mistake, fraud, or illegality

Important distinction: P/E rule does NOT apply to agreements made AFTER signing of a K. Evidence of modifications is admissible

Rule: a binding and integrated agreement discharges prior agreements to the extent that they are

i. inconsistent w/ the binding, integrated agreement


ii. w/in the scope of the binding, integrated agreement

If the second agreement is ambiguous, then evidence of prior agreements should NOT be excluded as inconsistent, but should be admitted to help clarify the second agreement

Modern trend as to P/E rule: determine intentions of parties by looking at ALL credible evidence concerning agreement. Look at surrounding circumstances

ONLY exclude that evidence that in NOT credible

Merger clauses:

Merger clause: provision in agreement that states that the written K is the entire expression of the agreement between the parties

merger clauses can be held to be unconscionable if “sprung” on the other party

if a merger clause is “boilerplate” then many cts will find that both parties did NOT intend to be bound by clause

merger clauses are NOT completely controlling, but do create a presumption that the written agreement was intended to be a complete integration

NOM clauses:

Many k’s have provision that the written K CANNOT be modified orally, only in writing

These are known as No Oral Modification (N.O.M.) clauses

At C/L, an oral modification WAS enforceable despite NOM

UCC 2-209 changes the C/L in 2 ways:

1. modification of K for sale of good needs NO consideration to be binding

2. If a K has a NOM, modifications must be written

Plain meaning rule:

If a writing appears to be plain and unambiguous on its face, its meaning MUST be determined from the “4 corners” of the instrument, W/OUT resorting to extrinsic evidence

Modern trend is NOT to follow strict interpretation of plain meaning rule

Most cts will follow the view of Corbin: No K should ever be interpreted and enforced with a meaning that neither party gave it

Differences between P/E rule and plain meaning rule: plain meaning rule is a principle of interpretation, but P/E rule is NOT. (rule of evidence)

The meaning of K is a question of fact (jury question), UNLESS the question could only be answered one way by a reasonable jury


Usage is a habitual or customary practice

Gen rule: an agreement is interpreted in accordance w/ relevant usage IF:

1. each party knew or had reason to know of the usage, AND

2. neither party knew or had reason to know that meaning attached by other was NOT

consistent with the usage


A usage of trade is one having such regularity of observance in a trade as to justify an expectation that it will be observed w/ respect to a particular agreement

Existence and scope of usage are questions of fact


Prior to 2-207, there was the “mirror image rule”: in order to exercise power of acceptance, reply must be an exact mirror image of offer

If reply was NOT a mirror image, then it was NOT an acceptance, but a counter offer

As more and more form K’s were being formed, there began to be “battle of the forms”


§ 2-207:

1. A definite (main message) and seasonable (reas. time) expression of acceptance operates as

an acceptance to an offer, EVEN THOUGH it states terms additional to or different from those originally offered or agreed upon, UNLESS acceptance is made expressly conditional upon assent of other party to the additional or different terms

2. The ADDITIONAL terms of the offeree’s response become part of the K, UNLESS

a. the offer expressly limits acceptance to terms of offer

b. the terms materially alter the K

c. notification of objection to the terms is received w/in a reasonable time after they are received

3. Conduct by both parties that recognizes the existence of a K is sufficient to establish a K, EVEN THOUGH the writings of the parties DO NOT establish a K. When this happens, the terms of the K are those agreed upon in the writings, and other terms incorporated under the UCC

2-207(1) - “Knockout rule”: when a K is formed under §2-207(1), conflicting or different terms in the offer and acceptance knock each other out of the agreement

2-207(1) - The “expressly conditional” provision of 2-207(1) is intended to apply ONLY if the acceptance clearly indicates that the offeree does NOT wish to proceed w/ the transaction unless he is assured of offeree’s assent to the additional or different terms

If offeree uses an “expressly conditional” clause in acceptance and offeror does NOT expressly assent to offeree’s additional or different terms, then must look to conduct of parties [2-207(3)]

2-207 (2) - a term “materially alters” the K if it is a surprise or hardship

2-207(3) - NO K is formed by writings; K is formed by course of performance


Generally, b/c form K are extremely difficult for the average person to understand, cts tend to


be sensitive to claims of unconscionability when a form K is involved






When one party (the merchant, the person who has drawn up the k) has reason to believe


that the other party (the consumer, the party being presented the form K) would NOT assent

if he knew the writing contained a particular term, term is NOT part of the agreement



5 categories of mistake:

1. misunderstanding

2. mutual mistake

3. unilateral mistake

4. mistake in transcription

5. nondisclosure

A. Misunderstanding

Raffles v. Wichelhaus - October boat/ December boat


B. Mutual mistake • §152- where a mistake of BOTH parties (as to a basic
Mutual mistake
• §152- where a mistake of BOTH parties (as to a basic assumption upon which the K was
made) has a material effect on the agreement, the K is voidable by the adversely affected
party UNLESS he bore the risk under §154
• § 154- party bears the risk of mistake when:
a. risk is allocated to him by agreement
b. he is aware at the time K is made that he has only limited knowledge of the facts
about which mistake was made and decides to proceed anyway
c. ct allocates risk to him
• 154(b) is describing situation where person claiming mistake realized that there was a
possibility of mistake
• If person is NOT cognizant of possibility of mistake, 154 (b) does NOT apply
• §2-314- Implied warranty of merchantability - a warranty that the goods shall be
merchantable is implied in K for their sale IF seller is merchant w/ respect to goods of that
• merchantable: standard goods
Unilateral mistake
§153 - If only one party makes a mistake (as to a basic assumption on which K was
made) that has a material affect on the exchange of performances, the K is voidable by
him IF:
a. he has NOT assumed risk under §154, AND
b. either:
enforcement of K would be unconscionable
ii. other party knew or had reason to know of mistake
iii. other party caused mistake
• Misrepresentation- assertion of a fact that is NOT true • §161 - a party
Misrepresentation- assertion of a fact that is NOT true
§161 - a party has a duty to disclose a known fact IF:
a. he knows that disclosure is necessary to prevent some previous assertion from be
a misrep. OR
b. he knows that disclosure would correct a mistake as to a basic assumption about K
AND if nondisclosure amounts to failure to act in good faith, OR
c. party knows that disclosure would correct a mistake in the written K, Or
d. other party is entitled to know the fact b/c of relationship of trust and confidence
If a party does NOT disclose a known fact under circumstances above, it is the equivalent of
a misrepresentation
a misrepresentation is fraudulent IF the party intends assertion to induce other party to
agree AND
1. he knows or believes assertion is untrue
2. he does not have confidence that he states or implies the truth
3. he knows that he does not have basis for what he states or implies as to the assertion


a misrep. is material IF it would likely induce a reasonable person to agree to K

If a party’s assent is induced by a fraudulent or material misrep. upon which party is


justified in relying, K is voidable


If the misrepresentation is made by a 3 rd party, K is still voidable by recipient UNLESS


other party in good faith and w/out reason to know of misrep. materially relies on K


E. Mistake in transcription; reformation

• General rule : party seeking to reform a K must prove by clear and
• General rule : party seeking to reform a K must prove by clear and

General rule: party seeking to reform a K must prove by clear and convincing evidence

rule : party seeking to reform a K must prove by clear and convincing evidence what

what the true terms of the agreed K were

rule : party seeking to reform a K must prove by clear and convincing evidence what

Basic idea of reformation: b/c of a mistake in transcription, the K does NOT reflect the

actual agreement of the parties.

Generally, SOF or P/E rule does NOT apply to reformation


UCC § 2-615: Delay in delivery or non-delivery is NOT a breach of K IF performance has been made impracticable by the occurrence of a contingency that the non-occurrence of which was a basic assumption upon which K was made

Res § 261 is the same idea: “Non-performance is NOT a breach…”

examples of contingencies that the non-occurrence of which would be a basic assumption upon K was made:

i. death of a person necessary for performance

ii. destruction of a thing necessary for performance

iii. enactment of a governmental regulation or order

3 steps in determining impossibility of performance/changed circumstances:

1. contingency (something unexpected) must have occurred

2. the risk of unexpected occurrence must NOT have been allocated either by agreement or custom

3. occurrence must have rendered performance commercially impracticable

- At what point, do added expenses become an impracticability that provides excuse?

o Courts are not apt to excuse unless extra cost is above 50%, and the greater the extra cost, the more likely the court will excuse

Forseeability or even recognition of risk does NOT necessarily prove its allocation

a duty is legally impossible if it is impracticable

a duty is impracticable if it can only be done at an excessive or unreasonable cost

Generally, all other thing being equal, seller bears risk UNLESS performance is extremely burdensome. Then, buyer bears risk

Increased cost of performance ALONE does NOT excuse performance UNLESS the rise is due to some unforeseen contingency which alters the essential nature of the performance


Neither the rise or fall in the mkt. renders a performance impossible b/c that is the type of occurrence that fixed price K’s are designed to protect against

Building of structure v. repairing a structure

If person has been hired to build a new structure, he bears the risk of its destruction until completion and delivery

Builder has NO claim either contractually or quasi-contractually against owner for partial performance

If a person has been hired to repair an existing building, owner of building bears risk

Repairer has a right to compensation for the reasonable value of goods and materials used in repair done BEFORE destruction of building

Subcontractors on a new building:

Generally, where performance by subs on a K to do work on a new building is rendered impossible, the Π subs

i. CANNOT recover from Δ contractor for the expenses incurred in preparation

ii. CAN recover for labor and materials “wrought” into structure (quantum meruit)

 Agreements to arbitr ate:

Agreements to arbitrate:

 Agreements to arbitr ate: • C/L : agreement to arbitrate was NOT enforceable
 Agreements to arbitr ate: • C/L : agreement to arbitrate was NOT enforceable
• C/L : agreement to arbitrate was NOT enforceable

C/L: agreement to arbitrate was NOT enforceable

Nearly all states have passed statutes that make agreements to arbitrate enforceable

• MS has: 1. statute that makes agreements to submit to arbitration future disputes in
• MS has:
1. statute that makes agreements to submit to arbitration future disputes in
construction K’s enforceable
2. statute that makes agreements to submit to arbitration present disputes
3. BUT agreements to submit future disputes in NON-construction K’s are
NOT enforceable
• Once you start arbitration, you waive right to break agreement to arbitrate
Arbitration forms enforceable
-Whether the provision was unconscionable?
-Whether person signing agreement was authorized to waive right to sue.

“force majeure clauses- excuses party for non-performance due to force majeure (usually act of God)

K for sale of crops: usually if farmer cannot supply all or part of a specified amount to buyer b/c of crop failure, he is still responsible for the K and must satisfy by purchasing needed commodity on open mkt.

Frustration: where, after K is made, a party’s purpose is frustrated (not by his fault) by occurrence of an event the non-occurrence of which was a basic assumption


on which K was made, remaining duties are discharged, unless K indicates otherwise

- Ex: case about D renting room for purpose of watching the king’s procession. King got sick and procession was postponed. D declined to pay balance for the room, and Court discharged it –the buyer was relieved due to frustration of purpose


Basic problem: A contracts with B, and performance of K benefits C. To what extent should the law protect C’s interest although C is not in privity?

3 rd party beneficiary = party who is not party to K but benefits from its performance

General common law rule: When a promise is made to one for the benefit of another, the one who was to benefit from the K (beneficiary) may bring an action for its breach

R § 302: 2 terms for 3 rd party beneficiary:

1. intended beneficiary – has right of enforcement of K if recognition of a right to performance in beneficiary is appropriate to meet intentions of K parties, AND either:

a. performance will satisfy a debt owed beneficiary (creditor beneficiary), OR

b. circumstances indicate promisee intended benefit of performance go to beneficiary (donee beneficiary)

- promisor has a duty to perform to promise to intended beneficiary

2. incidental beneficiary – does not have right of enforcement of K against p’sor or p’see; incidental beneficiary is any to whom benefit was NOT intended

6 questions to decide if 3 rd person was intended beneficiary:

1. Would 3 rd person be reasonable in relying on promise?

2. Is promise written in way that promisor’s performance is to be rendered directly to 3 rd party?

If so, then it’s more likely that there will be a finding of intended beneficiary

3. Does K mention 3 rd party?

If so, more likely to be intended beneficiary

4. Does p’see owe a duty to 3 rd party (e.g., creditor/beneficiary) that would be satisfied by performance?

5. Does p’see wish to make gift to 3 rd party?

6. Has 3 rd party or p’see suffered harm?

if only 3 rd party suffers harm, then it is certainly likely that 3 rd person will be found to be intended beneficiary

If promisee also suffers harm, must go to this question: Would 3 rd party’s maintaining a right of action interfere w/promisee’s remedial actions?

P’see maintains the right to modify K w/ promisor

Rights of 3 rd party beneficiary are subject to p’see’s right to modify K

Rights of 3 rd party ben. DO NOT rise above rights of p’see

P’sor and P’see retain rights to modify or discharge K that benefits 3 rd party UNLESS:

1. agreement contains term that forbids modification or discharge

2. 3 rd party beneficiary has materially changed position in reliance upon promise


Promise creates NO DUTY to 3 rd party ben. IF

i. NO K is formed between p’sor and p’see

ii. K is voidable

iii. K is unenforceable

Right of 3 rd party beneficiary is modified or discharged IF K ceases to be binding b/c of

a. impracticability

b. non-occurrence of a condition

c. present or prospective failure of performance

d. public policy

Right of beneficiary against p’sor is NOT subject to:

i. p’sor’s defenses against p’see

ii. p’see’s defenses against p’sor

Beneficiary’s right against p’sor IS subject to any defense arising out of beneficiary’s conduct or agreements

R (2d) § 313 Government Contracts (2) In particular, a promisor who contracts w/ a gov’t or gov’t agency to do an act for or render a service to the public is not subject to contractual liability to a member of the public for consequential damages resulting from performance or failure to perform unless


the terms of the promise provide for such liability (agreed damages

provision); OR


the promisee is subject to liability to the member of the public for the

damages and a direct

action against the promisor is consistent w/the terms

authorizing the K and prescribing

of the K and w/the policy of the law

remedies for its breach

Individual 3 rd party does not have the right to enforce a K made for the benefit of the general public (3 rd party not meant as intended beneficiary)


An assignment takes effect through the action of the assignor and assignee.

Obligor need not accept the assignment to render it valid

For an assignment to be valid against an obligor, the assignor MUST:

i. make clear intent to relinquish the right to the assignee

ii. NOT retain any control over right or any power of revocation

When assignment is made for value, assignor’s right is extinguished

Donative assignments:

1. Donative assignment is irrevocable IF it is in a signed writing

2. Except noted, an oral donative assignment is revocable and assignee’s right is terminated by

a. assignor’s death

b. subsequent assignment by assignor

c. notification of termination from assignor received by assignee

3. Donative oral assignment ceases to be revocable if before assignee’s right is terminated, assignee obtains:


i. payment of obligation

ii. judgment against obligor

iii. new K w/ obligor by novation

4. Donative oral assignment is irrevocable IF

a. assignor should reasonably expect assignment to induce reliance by assignee

b. it does induce reliance, and

c. justice requires enforcement of assignment

Non-donative oral assignment: absent statute, an assignment in exchange for consideration is fully effective and irrevocable

UCC 9-318(3) - The account debtor, upon proper notification of assignment, is bound to pay assignee, NOT assignor

Debtor’s failure to pay assignee after receiving notice gives rise to assignee’s claim for wrongful payment (to assignor)

B. Assignment of rights and delegation of duties


General rule: K rights are assignable

Exception: when the K calls for rendition of personal services based upon a

relationship of confidence between the parties

K rights under a bilateral executory K can be assigned UNLESS:

a. assignment would materially:

i. change duty of obligor

ii. increase risk or burden of obligor

iii. impair obligor’s chance of return performance

iv. reduce value of K to obligor

b. assignment is forbidden by statute or is against public policy

c. assignment is precluded by terms of K

Clause in K stating that obligee CANNOT assign w/out permission of obligor in NOT absolute

Cts will usually impose obligation of duty to deal in good faith upon obligor who refuses to allow assignment

Obligor can only refuse to allow assignment for good cause

UCC is different ***********ASK ABOUT THIS*********

UCC 9-318(4) - A term in a K between an account debtor (obligor) and assignor is ineffective if it prohibits assignment of account rights

Assignor can assign rights and debtor/obligee CANNOT stop it by term in k


General rule: Delegant CANNOT free himself from liability by delegating duties of performance to another

General rule II: Delegant CANNOT assign duties and liabilities under a K W/O consent of party to whom liable


Obligor can delegate performance of a duty UNLESS delegation is against public policy or terms of the K

Unless K states otherwise, a promise requires performance by a particular person ONLY to the extent that the obligee has a substantial interest in having that person perform (painting a portrait)

UNLESS obligee agrees, delegation of a duty DOES NOT discharge any duty or liability for non-performance of delegating obligor


Draw schematic here

If delegee screws up job, obligee has cause of action against BOTH delegor and delagee

If , HOWEVER, obligee and delagee have made a NEW K, then there is a novation and obligor/delegor is no longer liable


Financing through assignment of claims


draw schematic here

example of a “secured transaction”

obligee/assignor has assigned right to $800,000 that obligor owes him

This assignment was done a security for loans from assignee 1 and assignee 2

If obligee/assignor defaults on loans, who has priority

Usually whoever has perfected their security interest first


Defenses of obligor against assignee in a commercial context


§ 336 - If right of obligee/assignor would be (1) voidable by obligor or (2) unenforceable against obligor (if no assignment had taken place), then right of assignee is subject to defense

In other words, if obligor would have had a defense against obligee/assignor, he can assert that defense against assignee

Res. 336 and UCC 9-318 are basically same, but 9-318 is clearer

9-318 - defenses against assignee The rights of the assignee are subject to:

a. all terms of k between obligor and obligee/assignor and any defenses arising out of K

b. any other defense or claim of obligor against obligee/assignor which

accrues BEFORE obligor receives notification of assignment

ANY defense inherent to K are enforceable against assignee

The date of notification of assignment is critical when the claims of obligor against obligee/assignor arise independently of K creating the account

Very possible that obligor is owed by obligee for a different K

The date determines what claims assignee is subject to

Two theories on when claims of obligor accrue:

1. when obligation to pay is incurred

2. when obligation is actually due and payable

E. Defenses in the Consumer context

If an assignee is a good faith purchaser for value without notice of a negotiable instrument, he is a holder in due course (HDIC)

A HDIC-assignee is NOT subject to defenses of obligor

Consumer transactions are different than commercial trans.

In consumer transactions, the HDIC rule does NOT apply


Both the UCC(1-203)and Res.(255) impose an obligation to perform in good faith on all K’s

MS employment at will: if there is no term of K for employment, employer may terminate K at will and there is no obligation to do so in good faith

Bradley thinks this will change


A. General principles

Definition of a “condition” - an event that must occur before performance under a K

becomes due, UNLESS non-occurrence is excused

Jacob & Young v. Kent - “Reading pipe case”


classic example of substantial performance

Substantial performance doctrine reduces opportunistic claims of breach of K by softening the breacher/non-breacher distinction, thereby removing opportunities to exploit inadvertent breaches

Substantial performance: compliance in good faith w/ all important elements of a K

Doctrine seen often in construction setting

To recover in an uncompleted construction K on a claim of having substantially, but NOT fully, performed, the contractor must make a good faith effort to perform and substantially perform agreement

Doctrine of subst. perf. is altered when dealing w/ a K to build a person’s home and there is an issue as to taste

General rule: a person has, particularly w/ respect to his home, a right to K for something that EXACTLY meets his choice of taste and NOT be compelled to accept something else

in the matter of homes and their decoration, mere taste or preference, approaching whimsy, may be controlling w/ the homeowner, so that variations which might, under other circumstances, be considered trivial may be inconsistent w/ that “substantial performance” upon which liability to pay is predicated

distinguish between work not done and work not done up to standards of K

i. work not done - quantum meruit

ii. work not done to standards of K - subst. perf.

B. K for sale of goods

OLD rule for k for sale of goods was the “perfect tender” rule

perfect tender rule: buyer could reject ANY tender not exactly perfect

perfect tender rule similar to §2-601

2-601: Buyer’s right upon improper delivery of goods

If goods delivered fail in ANY way to conform to K, buyer may:

a. reject the whole

b. accept the whole

c. accept any commercial unit and reject rest

However, 2-601 is qualified in several important ways:

1. good faith - buyer must reject in good faith

2. revocation of acceptance - 2-608

3. installment K - 2-612

4. cure by seller - 2-508

2-608: revocation of acceptance: If buyer accepts goods and THEN discovers defect, he may revoke acceptance ONLY if the nonconformity substantially impairs value of goods (CANNOT USE 2-601)



Buyer who accepted goods KNOWING of nonconformance can revoke ONLY if he accepted upon a reasonable assumption that nonconformity would be cured and it has NOT been cured w/in a reasonable time

2. Buyer who accepted goods W/O knowing of defect can revoke ONLY if acceptance was induced by

a. difficulty in discovering defect, OR

b. seller’s assurances

2-612-Intallment K’s- for installment K CANNOT USE 2-601

1. Buyer can reject installment ONLY if

a. nonconformity substantially impairs value of installment, AND

b. defect CANNOT be cured

2. Buyer CANNOT treat whole K as breached b/c of nonconformity of one installment, UNLESS nonconformity substantially impairs value of entire K

Test for “substantial impairment”:

a. Is good usable by buyer?

b. Is good usable by someone else? (can it be resold)

2-508 - Cure by seller:

i. seller who has made a non-conforming tender or delivery can make a conforming delivery w/in remaining time for performance, upon notice to buyer

ii. seller who has made a non-conforming tender or delivery and time for performance has expired, may have a reasonable amount of additional time to make a conforming tender, IF seller had reasonable grounds to believe that first tender would be acceptable to buyer

Cure: potentially of great comfort to seller

can minimize seller’s damages for breach of K

Two different views of “cure” under 2-508

a. PEB Study group:

i. Conforming delivery can be made by tendering new or additional goods, BUT NOT by money allowance

ii. Split as to whether repair (rather than replacement) suffices as cure

b. ABA Task force:

i. Conforming delivery can be made by tendering new or additional goods, BUT NOT by money allowance

ii. Repaired goods SHOULD constitute a cure IF they satisfy original K description


express condition” refer to an explicit contractual provision that provides for either:

1. that a party to a K is NOT obligated to perform UNLESS some event occurs or does NOT occur



that if some event occurs or does NOT occur, the obligation of a party to perform a duty is suspended or terminated

Effects of nonoccurrence of a condition

a. Performance of a duty subject to a condition CANNOT become due unless

i. the condition occurs OR

ii. nonoccurrence is excused

b. Nonoccurrence of a condition discharges the dependent duty when the condition can no longer occur

c. nonoccurrence of a condition is NOT a breach UNLESS party is under some duty that condition occur

Excuse of a condition to avoid forfeiture- cts may excuse nonoccurrence of a condition IF forced occurrence would cause disproportionate forfeiture UNLESS condition was a material part of agreement

B. Distinctions between the operation of a promise and the operation of a condition

a party’s failure to fulfill a condition (w/o an independent promise to fulfill condition) is NOT a breach of K subjecting non-fulfilling party to damages for breach

In short, if one party does NOT fulfill condition

i. other party’s duty to perform is discharged, BUT

ii. other party CANNOT collect damages for breach of K

Of course, breach of a promise DOES give rise to an action for damages

For a condition to be fulfilled, the terms of the condition must be met exactly

“bulls-eye”, not just be close to target

Must hit the

No “substantial performance” of a condition

If tendered performance of a condition are not exact, we automatically decide that other

party’s duty does not arise

C. Problems of interpretation

the law of conditions can be rather harsh, so cts will try to interpret unclear language as promissory

General rule: when the intent of the parties is not clear, the disputed language is generally interpreted to be promissory, rather than conditional

This helps avoid automatic discharge of other person’s duty

two ways to avoid automatic enforcement of a condition:

i. excuse

ii. treat provision as promise, NOT condition

D. Conditions subsequent and conditions precedent


i. some event must occur BEFORE a party becomes liable

ii. Duty arises when condition precedent is fulfilled


i. party is already liable, but will be relieved of liability by occurrence of some event


ii. Duty is discharged when a condition subsequent occurs

E. Conditions of cooperation

General rule: Whenever cooperation of p’see is necessary for the performance of the promise by the p’sor, there is a condition implied-in-fact that cooperation will be given

F. Conditions of satisfaction

two standards of satisfaction

a. reasonable person: used when K involves commercial quality, operational fitness, mechanical utility

b. standard of good faith: used when K involves personal taste

General rule: If language or circumstances surrounding K reflect that parties actually intended for one party to have the right to reject work for failure to satisfy private, aesthetic taste, rejection is proper EVEN if unreasonable

The risk to contractor in conditioning owner’s duty to pay on reasonable satisfaction can be avoided by making it the condition of satisfaction of a independent 3 rd party

In this case, cts usually interpret satisfaction to mean “honest satisfaction”

However, if 3 rd party’s dissatisfaction in honest, does NOT have to be reasonable

IF 3 rd party’s dissatisfaction is unreasonable to the extreme, however, cts may excuse condition by characterizing refusal as constructive fraud

G. Conditions of payment

Intention of parties is controlling factor in each case

If disproportionate forfeiture is likely, cts will generally interpret language to be a promise to pay, NOT a condition to pay

H. Excuse

Excuse of a condition to avoid forfeiture- cts may excuse nonoccurrence of a condition IF forced occurrence would cause disproportionate forfeiture UNLESS condition was a material part of agreement

notice requirements in insurance cases- proper balance between interests of insurer and insured requires factual inquiry into whether an insurer has been prejudiced by an insured’s delay in giving notice of an event triggering insurance coverage

If it can be shown that insurer suffered NO material prejudice from delay, nonoccurrence of the condition of timely notice may be excused b/c it is NOT a material part of agreed exchange


A. Order of performance

§ 233- where performances are to be exchanged under a bilateral K, AND the whole of a party’s performance can be rendered at one time, it is due at one time, UNLESS language of K or circumstances indicate contrary

§ 234 - where all or part of the performances under a bilateral K can be rendered simultaneously, they are due simultaneously.

234 is kind of an “implied condition”


2-507 - tender of delivery is a condition to a buyer’s duty to accept or pay for goods

2-511 - unless otherwise agreed, tender of payment is a condition to a seller’s duty to tender and complete delivery

General rule: when performances are to be simultaneous, neither party can recover damages UNLESS he does something to put the other in default

Π must make a definite offer to perform while having the capacity to do so

Π must be able to show that he was “willing and able” to perform at time performance was due

B. Material breach

237 - it is a condition of each party’s remaining duties that there be NO uncured material breach by other party

In other words, if other party has an uncured material breach, Π can w/hold performance

Circumstances significant in determining if breach is material:

a. extent that injured party will be deprived of reasonably expected benefit

b. extent that inured party can be adequately compensated for part of benefit deprived

c. extent that party failing to perform will suffer forfeiture

d. likelihood that party failing to perform will cure breach

e. extent that behavior of party failing to perform comports to standards of god faith and fair dealing

uncured material breach § 237 suspend/withhold performance

Total breach § 236(1) cancel K

collect damages

NO right to performance NO duty to perform

§ 236 -

1. TOTAL breach:

Partial breach § 236 (2) damages

CANNOT w/hold performance

injured party can collect damages based on ALL of his remaining rights of performance

injured party has a right to cancel K

2. PARTIAL breach:

injured party can collect damages based on ONLY part of his remaining rights to performance

CANNOT w/hold performance


CANNOT cancel K

243 (4) - when uncured material breach becomes a total breach

-Breach by non-performance gives rise to claim for TOTAL breach ONLY if it so substantially impairs the value of the K to injured party that it is just to allow injure party to cancel K, AND recover damages

ONLY WHEN ABOVE OCCURS(substantial impairment of value of K) CAN A PARTY CANCEL K


§ 250: A repudiation is a:

a. statement by one party indicating that he will commit a breach that would give other party a claim for total breach under §243, or

b. an affirmative act which renders repudiator apparently unable to perform

§ 253: an anticipatory repudiation by one party:

i. allows injured party to recover damages for total breach, AND

ii. discharges injured party’s duties under K

If a party to a K (1) demands a performance to which he has NO right under the K, and (2) states that, unless his demands are met, he will NOT render promised performance, then party has anticipatorily repudiated

However, mere request for a change in terms in K or cancellation of K is NOT a repudiation

A party’s expressed doubts as to ability or willingness to perform is NOT a repudiation

Although non-breaching party does NOT have to continue to perform AFTER the other party has repudiated, he MUST be able to show that he was willing and able to perform BEFORE the repudiation

When a p’sor repudiates a K, injured party has option of treating repudiation as a:

1. total breach and immediately seeking damages, OR

2. empty threat (hoping that repudiating party will actually perform) and wait until performance is due and then seek damages

However, IF injured party disregards repudiation and treats K as still in force, and repudiation is retracted prior to time performance is due, then repudiation is nullified and injured party MUST wait until performance is due to seek damages

§256 -

1. STATEMENT of repudiation can be nullified by a retraction of the statement IF the retraction comes prior to:


a. Π materially changing position based upon reliance on repudiation OR

b. Π notifies repudiator that he considers repudiation permanent

2. Effect of EVENTS constituting repudiation is nullified IF injured party knows that those events have changed prior to:

a. Π materially changing position based upon reliance on repudiation OR

b. Π notifies repudiator that he considers repudiation permanent

2-609(1) - When reasonable grounds for insecurity arise w/ respect to performance by either party, the other may in writing demand adequate assurances of performance

UNTIL such assurances are received, other party may suspend any performance due

2-609(4) - If a party, AFTER receipt of a justified demand to provide adequate assurance w/in a reasonable time (not to exceed 30 days), does NOT provide such assurance, it is a repudiation of the K

In an action for damages b/c of an anticipatory repudiation, what date should be used to

compute damages:

the date or performance or the date of repudiation?

Seems to be a split in the case law, but majority seems to accept date of repudiation

2-610: Injured party of an anticipatory repudiation may:

a. for a commercially reasonable period time await performance by the repudiating party, OR

b. resort to any remedy for breach, even though he tells repudiating party that he expects performance and urges retraction,


c. in either case, may suspend his own performance

Injured party’s right to wait for repudiating party to perform is conditioned upon:

i. waiting no longer than “commercially reasonable time”, and

ii. use good faith

2-713 - Measure of damages for repudiation by seller is Mkt. price at time when buyer learned of breach - K price damages

EXCEPTION to doctrine of anticipatory repudiation: if ALL duties on one side of the K have been performed, and the only obligation remaining on other side is to perform a series of separate acts, a breach of one or more of those acts DOES NOT permit suit to be brought for anticipatory repudiation

REASON: there is NO total breach

Example: 10 yr. loan to be paid back by monthly installments A misses third, fourth, and fifth payment


Obvious problem w/ exception: it may force the innocent party to bring one suit after another, one for each unperformed act

2 ways around problem:

1. acceleration clause in K

2. Π can seek injunctive relief from a ct - prevent Δ from w/holding payments