Ch+20-REVIEW-PT+1-S10

Ch+20-REVIEW-PT+1-S10 - CH 20 REVIEW Dr. Deborah Pomeroy...

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CH 20 REVIEW Dr. Deborah Pomeroy BLaw 2361 S10 DISCHARGE AND REMEDIES-Part 1 MOD = MEASURE OF DAMAGES COA = CAUSE OF ACTION BOK = BREACH OF CONTRACT BP = BREACHING PARTY NBP = NON-BREACHING PARTY At some point, most Ks come to an end and the parties no longer have any obligations—this is called DISCHARGE .   --the parties are DISCHARGED of any further obligations under the K and the K is TERMINATED . DISCHARGE OCCURS either when: (1) both parties have fully PERFORMED their contractual obligations; OR (2) events, conduct of the parties, or operation of law RELEASE (or excuse) the parties from their obligations to perform, including, the happening of a condition or its failure to occur, performance material breach by one or both parties, agreement of the parties, and operation of law. CONDITIONAL Ks: A party’s obligations to perform under a K are usually absolute , but may be contingent on the occurrence or nonoccurrence of some event, which makes performance “ conditional .” Definition of Condition: 1
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A QUALIFICATION, PROVISION, or CLAUSE in a K which CREATES, SUSPENDS, OR TERMINATES the obligations of one or both parties to the K, depending on whether an event happens or not. TYPES of Conditions: 1. Conditions Precedent 2. Conditions Subsequent or 3. Concurrent Conditions 1. Condition Precedent: A condition that must be satisfied before a party’s contractual obligation to perform arises and becomes absolute. If the condition does not occur, the party’s duty to perform never exists. 2. Condition Subsequent: A FUTURE event that TERMINATES the obligations of the parties to perform when it occurs or does not occur. --Usually contains terms like “ unless ” or “ until ” or “ as long as ” in the condition(s). -- Obligated “ until ” something happens. --when the condition subsequent occurs, the party is discharged of obligations. 3. Concurrent Conditions: Mutually dependent conditions that must occur or be performed at the same time in order to give rise to any absolute obligation to perform. Each party’s obligation to perform is conditioned on the other’s performance or TENDER of performance. Neither can recover from the other for breach until his/ her own performance is TENDERED . Tender : An unconditional offer to perform an obligation by a person who stands ready , willing , and able to do so. Until BOTH parties tender performance, neither is obligated. I. DISCHARGE BY PERFORMANCE 2
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A K terminates when both parties perform or tender performance of the acts they have promised. Complete vs. Substantial Performance: COMPLETE = All aspects of the parties’ duties are carried out perfectly . --it is usually difficult or impossible to obtain “perfect” performance, so courts
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This note was uploaded on 09/24/2011 for the course BLAW 2361 taught by Professor Bible during the Spring '08 term at Texas State.

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Ch+20-REVIEW-PT+1-S10 - CH 20 REVIEW Dr. Deborah Pomeroy...

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