Ch 17: Performance And Discharge

Front 1

main concept

Back 1

the most common way to discharge, or terminate, one's contractual duties is by the performance of those duties

Front 2

absolute promises

Back 2

promises of performance are generally not expressly conditioned or qualified
-the must be performed, or the parties promising the acts will be in breach of the contract

Front 3

condition

Back 3

possible future event, the occurance or nonoccurrence of which will trigger the performance of a legal obligation or terminate an existing obligation under a contract
-if this condition is not satisfied, the obligations of the parties are discharged
EX: Alfonso offers to purchase a paintin from Jerone only if the independent appraisal indicates it is worth at least $10,000. *their obligations are conditioned on the outcome of the appraisal

Front 4

Types of conditions that can be present in contracts

Back 4

- conditions precedent
- conditions subsequent
- concurrent conditions

Front 5

condition precedent

Back 5

a condition that must be fulfilled before a party's performance can be required
EX: the bank's approval of a mortgage application. can't buy the house if the bank doesn't approve FIRST
*common condition

Front 6

condition subsequent

Back 6

when a condition operates to terminate a party's absolute promise to perform
EX: if Koker has a job that requires her to maintain her law license, then she fails, this would discharge a duty that has already risen
*rare conditions

Front 7

concurrent conditions

Back 7

when each party's performance is conditioned on the other party's performance or tender of performance (offer to perform)
-occur only when the contract calls for the parties to perform their respective duties simultaneously
EX: if a buyer promises to pay for goods when the seller delivers them

Front 8

express conditions

Back 8

provided for by the parties' agreement
-no particular words are necessary but normally prefaced by "if, provided, after or when"

Front 9

Types of conditions that can be present in contracts

Back 9

- conditions precedent
- conditions subsequent
- concurrent conditions

Front 10

condition precedent

Back 10

a condition that must be fulfilled before a party's performance can be required
EX: the bank's approval of a mortgage application. can't buy the house if the bank doesn't approve FIRST
*common condition

Front 11

condition subsequent

Back 11

when a condition operates to terminate a party's absolute promise to perform
EX: if Koker has a job that requires her to maintain her law license, then she fails, this would discharge a duty that has already risen
*rare conditions

Front 12

concurrent conditions

Back 12

when each party's performance is conditioned on the other party's performance or tender of performance (offer to perform)
-occur only when the contract calls for the parties to perform their respective duties simultaneously
EX: if a buyer promises to pay for goods when the seller delivers them

Front 13

express conditions

Back 13

provided for by the parties' agreement
-no particular words are necessary but normally prefaced by "if, provided, after or when"

Front 14

conditions implied in fact

Back 14

they are understood to be part of the agreement, but they are not found in the express language of the agreement
-courts may imply conditions from the purpose of the contract or from the intent of the parties
EX: car insurance policy, fails to cooperate, insurance company not liable

Front 15

discharge by performance

Back 15

majority of contracts discharged by performance - contract comes to an end when both parties fulfill their respective duties by performing the acts they have promised

Front 16

tender

Back 16

an unconditional offer to perform by a person who is ready, willing, and able to do so
- performance can also be accomplished by this
-once performance has been tendered, the party making the tender has done everything possible to carry out the terms of the contract

Front 17

complete performance

Back 17

when a party's performance is perfect, it is said to be complete
-conditions expressly stated in a contract must be fully satisfied for complete performance to take place

Front 18

substantial performance

Back 18

a party who in good faith performs substantially all of the terms of a contract can enforce the contract against the other party under the doctrine of substantial performance
*good faith is required - intentionally failing to comply with the terms is a breach of the contract

Front 19

Confers Most of the Benefits Promised (substantial performance)

Back 19

-the performance must not vary greatly from the performance promised in the contract
-if the omission, variance, or defect in performance is unimportant and can easily be compensated for by awarding damages, a court is likely to hold that the contract has been substantially performed
-decided on case-by-case basis

Front 20

Entitles the Other Party to Damages

Back 20

-Because substantial performance is not perfect, the other party is entitled to damages to compensate for the failure to comply with the contract
-damages = the cost to bring the object of the contract into compliance with its terms (if cost is reasonable)
-if unreasonable, the measure of damages = the difference in value between the performance that was rendered and the performance that would have been rendered if the contract had been performed completely

Front 21

performance to the satisfaction of another

Back 21

-contracts often state that a completed work must personally satisfy one of the parties or a third person: condition precedent? or if a test of satisfaction is an absolute promise requiring such performance as would satisfy a reasonable person

Front 22

when the subject matter of the contract is personal

Back 22

a contract to be performed to the satisfaction of one of the parties is conditioned, and performance must actually satisfy that party
-most contracts only need to be performed to the satisfaction of a reasonable person unless they EXPRESSLY STATE OTHERWISE

Front 23

breach of contract

Back 23

the nonperformance of a contractual duty

Front 24

material breach of contract

Back 24

when performance is not at least substantial
-the nonbreaching party is excused from the performance of contractual duties and can sue for damages resulting from the breach

Front 25

minor breach of contract

Back 25

not material
the nonbreaching party's duty to breach has been remedied, but the duty to perform is not entirely excused
-once the breach has been cured, the nonbreaching party must resume performance