Term
| What are the six ways to excuse the non-occurrence of a condition? |
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Definition
| (1) Exercising the power to terminate the contract; (2) prevention doctrine; (3) waiver; (4) estoppel (both promissory and equitable); (5) impracticability; and (6) disproportionate forfeiture |
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Term
| True or false: If the non-breaching party exercises its power to terminate the contract upon a material non-performance or repudiation, the subsequent non-occurrence of any conditions precedent to the breaching party's duty to perform is excused. |
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Definition
| True, though the non-breaching party must have been ready, willing, and able to perform. |
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Term
| What is the prevention doctrine? |
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Definition
| A party has an implied-in-law duty to cooperate with the other party and to not wrongfully prevent the occurrence of a condition to the other party's duty to perform, and if a party breaches its implied duty and prevents the occurrence of the condition, the non-occurrence of the condition is excused. |
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Term
| An offeree completing performance of a unilateral contract, when there is an equitable option, may be excused under what three circumstances? |
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Definition
| The offeror repudiates, prevents performance (prevention doctrine), or waives completed performance, though the offeree must still prove that he would have completed performance. |
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Term
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Definition
| A manifestation of present intention to relinquish or abandon a right or power. |
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Term
| The non-occurrence of a condition is excused under the doctrine of waiver when what elements are established? |
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Definition
| (1) The party whose duty is subject to the condition waives the occurrence of the condition; and (2) the occurrence of the condition is not a material part of the agreed exchange. |
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Term
| Which party has the power to waive the occurrence of a condition? |
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Definition
| Only the party for whose sole benefit the condition was included. |
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Term
| True or false: A waiver requires neither consideration nor reliance. |
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Definition
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Term
| True or false: A party can waive the non-occurrence of a future condition. |
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Definition
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Term
| Why is a party not permitted to waive a material part of the agreed-exchange? |
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Definition
| It would circumvent the general rule that new and independent consideration is necessary to modify a contract. |
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Term
| What types of conditions can be waived? |
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Definition
| Those that are ancillary or collateral to the contract's principle purpose; those that are considered minor, procedural, or technical. Typical examples relate to the manner of performance, the time for performance, notice requirements, and supplying proof of a particular event. |
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Term
| Can a party waive the power to terminate a contract as a result of a material breach? |
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Definition
| Yes. The power to terminate due to a material breach is an option that the party need not exercise. The party, however, retains the privilege to sue for breach of contract. |
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Term
| Can a party waive an anti-waiver clause or a no-oral-modification clause? |
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Definition
| Yes, though the existence of such a clause will be a factor in deciding whether there has in fact been a waiver or modification. |
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Term
| True or false: A condition that has been waived in exchange for consideration can unilaterally be reinstated. |
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Definition
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Term
| What four things are necessary to reinstate a condition that has been waived without consideration? |
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Definition
| (1) It must be done before the condition is to occur; (2) the occurrence of the condition is within the control of the other party; (3) the waiving party notifies the other party while there is still a reasonable time to cause the condition to occur (or an extension is given by the waiving party); and (4) reinstatement would not be unjust because of material reliance by the other party. |
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Term
| True or false: A waiver must be express. |
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Definition
| False. A waiver may be implied. |
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Term
| What is an example of when there will be an implied waiver of the non-occurrence of a condition? |
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Definition
| A promisor's acceptance or retention for an unreasonable time of the promisee's performance, with knowledge or reason to know of the non-occurrence of a condition of the promisor's duty, unless the promisee's performance involves such an attachment to the promisor's land that removal would cause material loss. |
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Term
| When will the non-occurrence of a condition be excused under the doctrine of equitable estoppel? |
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Definition
| When (1) the party whose contract duty is subject to the condition makes a misrepresentation to the other party and (2) the condition does not occur because of the other party's reasonable reliance on the misrepresentation. |
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Term
| What is the distinction between promissory estoppel and equitable estoppel? |
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Definition
| Promissory estoppel requires a promise that was not kept, whereas equitable estoppel requires a misrepresentation of current or past fact. |
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Term
| What is one of the benefits of promissory estoppel being used to excuse the non-occurrence of a condition rather than waiver? |
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Definition
| Promissory estoppel can be used to excuse the non-occurrence of a condition that is a material part of the agreed exchange. |
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Term
| What is one of the detriments of using promissory estoppel to excuse the non-occurence of a condition rather than waiver? |
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Definition
| Promissory estoppel requires detrimental reliance whereas waiver does not. |
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Term
| The acceptance of non-conforming goods in essence results in excusing the non-occurrence of the constructive condition of a perfect tender under what doctrine? |
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Definition
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Term
| Acceptance of a part of any commercial unit is acceptance of what? |
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Definition
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Term
| Acceptance of goods does not occur until what? |
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Definition
| A reasonable opportunity to inspect the goods to determine if they are conforming. |
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Term
| The non-occurrence of a condition is excused under the doctrine of impracticability if what elements are established? |
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Definition
| (1) Its occurrence is impracticable; (2) the occurrence of the condition is not a material part of the agreed exchange; and (3) forfeiture would result if its non-occurrence was not excused. |
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Term
| The occurrence of a condition is considered "impracticable" when what? |
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Definition
| (1) The event making the occurrene impracticable was not reasonably foreseeable at the time of contract formation, or so unlikely to occur so as not to be worth addressing; (2) the event was not the party's fault; and (3) the event caused the occurrence of the condition to be either impossible or capable of being accomplished only with extreme and unreasonable difficulty, expense, injury, or loss. |
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Term
| The word "forfeiture" refers to what? |
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Definition
| Losing one's right to the agreed exchange after substantially relying on the anticipated exchange through preparation to perform or performance. |
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Term
| A court may excuse the non-occurrence of a condition under the disproportionate-forfeiture doctrine under what circumstances? |
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Definition
| (1) A failure to excuse it would cause disproportionate forfeiture; and (2) the condition was not a material part of the agreed exchange. |
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Term
| Under the disproportionate-forfeiture doctrine, the forfeiture must be what? |
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Definition
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