CL Performance Issues

Question 1

breach

Answer 1

failure to perform absolute duty
- non breaching party must show willing/able to perform but for breach

Question 2

substantial performance

Answer 2

under CL, substantial performance is enough (meets k’s essential purpose)

ET: look for substantial performance issues in construction Ks or other similar service Ks

Question 3

other party’s obligations w/ substantial perforamnce

Answer 3

Other still obligated: if one party has substantially performed, other party is obligated to perform and complete performance
- less than perfect performance by one party does NOT excuse the other party from his obligation

BUT money damages

Thus, substantial performance by A obligates B to perform; but B may seek money damages for the difference between the performance rendered and the performance expected

Question 4

“substantial”

Answer 4

usually considered at least halfway complete

Question 5

determining substantial performance

Answer 5

courts look to:
- benefit received by nonbreaching party
- part performance by breaching party
- hardship to breaching party

Question 6

more likely material breach if

Answer 6

• cost is substantially less than benefit, or
• breaching party acted in bad faith (willful) + likelihood of cure low

Question 7

minor breach

Answer 7

does NOT excuse nonbreaching party’s performance
* merely gives right to damages (difference in performance rendered v. expected)

Question 8

material breach

Answer 8

occurs when one party’s failure to perform under k substantially deprives other party of benefit they bargained for

does NOT apply to UCC ks

material breach is NOT okay - damages

Question 9

material breach occurs when

Answer 9

• no performance or substantial performance
• no benefit of bargain to nonbreaching party

Question 10

rules concerning CL material breach

Answer 10

1. material breach by one party excuses performance by other
2. materiality of breach is question of fact
3. damages: recoverable for any breach to the extent they are foreeseeable as a probable result of breach

Question 11

timeliness of performance

Answer 11

• failure to perform by time state in k is NOT material breach if performance is rendered w/in a reasonable time

court looks @ all circumstances, not just k dates

Question 12

timeliness of performance exception

Answer 12

“time is of the essence” clauses
* arises if one party indicates as a term of the K that performance by a given date is essential
* if timely performance is essential as stated in K, failure to perform by that time is a material breach

court looks @ all circumstances, not just k dates