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Unformatted text preview: A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made. A condition is an event, not certain to occur, which must occur, unless the non- occurrence is excused, before performance under a contract becomes due." A condition is an express condition if the condition is stated by the parties in their agreement. Restatement § 227(1) states that in resolving doubts as to whether a term is a promise or a condition, an interpretation is preferred that it is a promise because this will produce less of a hardship. In resolving doubts as to whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk. an implied condition or a constructive condition . When the entire performance of one party is conditioned on the entire performance of the other party, we call these terms constructive conditions of exchange a condition is an event that must occur before some performance is due. If the event does not occur, the performance is not due. Restatement § 234 provides that where they can be rendered simultaneously, the performances are due simultaneously, but if they can’t, then the party whose performance requires a period of time must go first. The general distinction between a condition precedent and a condition subsequent is that a condition precedent describes an event that has to occur before a performance becomes due and a condition subsequent describes an event that extinguishes a duty that has already arisen; plaintiff has the burden of proof as to a condition precedent and the defendant had the burden as to a condition subsequent Who goes first? As seller UCC § 2-511(1), which provides that “Unless otherwise agreed tender of payment is a condition to the seller’s duty to tender and complete any delivery.” As buyer UCC § 2-507(1), which provides that “Tender of delivery is a condition to the buyer’s duty to accept the goods and, unless otherwise agreed, to his duty to pay for them.” Tender is an offer to perform coupled with a present ability to perform. Damages are the remedy for breach of promise. Discharge is the remedy when an event does not occur that conditions a performance by the other party. “economic waste” doctrine, when the cost of repair exceeds the value to be restored by the repair, the injured party may get not the cost of repair but the difference in value between what they were promised and what they got....
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- Fall '09
- Contract Law