11 Breach: Conditions and Substantial Performance 11 Breach: Conditions and Substantial Performance
Self-help is typically vastly cheaper than a lawsuit.
11.1 Express Conditions 11.1 Express Conditions
11.1.1 Restatement (Second) of Contracts §224 11.1.1 Restatement (Second) of Contracts §224
§ 224 Condition Defined
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A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
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Illustration:
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1. A contracts to sell and B to buy goods pursuant to a writing which provides, under the heading “Conditions of Sale,” that “the obligations of the parties are conditional on B obtaining from X Bank by June 30 a letter of credit” on stated terms. The quoted language is a term of the agreement (§ 5), not a condition. The event referred to by the term, obtaining the letter of credit by June 30, is a condition.
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Illustrations:
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2. A tells B, “If you will paint my house, I will pay you $1,000 on condition that 30 days have passed after you have finished.” B paints A's house. Although A is not under a duty to pay B $1,000 until 30 days have passed, the passage of that time is not a condition of A's duty to pay B $1,000.
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3. A contracts to sell and B to buy goods to be shipped “C.I.F.,” payment to be “on arrival of goods.” Risk of loss of the goods passes from A to B when A, having otherwise complied with the C.I.F. term of the contract, puts the goods in the possession of the carrier (Uniform Commercial Code § 2-320(2)). If the goods are lost in transit, B is under a duty to pay the price when the goods should have arrived (Uniform Commercial Code §§ 2-709(1)(a), 2-321(3)). The arrival of the goods is not a condition of B's duty to pay for the goods.
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Illustration:
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4. A tells B, “I promise to pay you $1,000 if you paint my house.” B begins to paint A's house. Since B's beginning of the invited performance gives rise to an option contract, B's completion of performance is a condition of A's duty under that contract to pay B $1,000. See § 45.
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Illustrations:
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5. A, as the result of financial reverses, sells B a valuable painting for $1,000,000, but reserves a right to repurchase it by tendering the same price on or before August 18 if he again finds himself in such a financial condition that he can keep it for his personal enjoyment. A's tender of $1,000,000 by August 18 and his being in such financial condition that he can keep the painting for his personal enjoyment are cumulative conditions and redelivery of the painting does not become due unless both of them occur.
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6. A purchases land from Mrs. B, who is unable to get Mr. B to join her in signing the deed because they are engaged in divorce proceedings. A takes possession under a deed signed by Mrs. B, pays Mrs. B $10,000 and promises to pay an additional $5,000 “if, within one year, (1) Mr. and Mrs. B execute a quitclaim deed to A, or (2) Mrs. B furnishes A with a certificate of the death of Mr. B with Mrs. B surviving him, or (3) Mrs. B as a single person executes a quitclaim deed to A after having been awarded the land following the entry of a final decree of divorce from Mr. B.” The three enumerated events are alternative conditions and A's payment of $5,000 to Mrs. B becomes due if any of them occurs.
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7. A and B contract to merge their corporate holdings into a single new company. It is agreed that the project is not to be operative unless the parties raise $600,000 additional capital. The raising of the additional capital is a condition of the duties of both A and B. If it is not raised, neither A's nor B's performance becomes due.
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Illustrations:
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8. A insures B's property against theft. The policy provides that B's failure to notify A within 30 days after loss shall “terminate” A's duty to pay and that suit must be brought within one year after loss. Since it can be seen from the circumstances that notice must ordinarily be given before payment by A can be expected, B's notification of A within 30 days after loss is a condition of A's duty. B's bringing suit against A within a year after loss is not a condition of A's duty. B's failure to bring suit within that time will discharge A's duty after payment has become due, along with any claim for breach.
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9. A and B make a contract under which A promises to pay B $10,000 in annual installments of $1,000 each, beginning the following January 1, with a provision that “no installments whether or not overdue and unpaid shall be payable in case of A's death within the 10 years.” A's being alive is a condition of his duty to pay any installment. A's death within ten years will discharge his duty to pay any installment after payment has become due, along with any claim for breach.
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11.1.2 Restatement (Second) of Contracts §225 11.1.2 Restatement (Second) of Contracts §225
§ 225 Effects of the Non-Occurrence of a Condition
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(1) Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused.
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(2) Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur.
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(3) Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur.
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Illustrations:
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1. A contracts to sell and B to buy A's business. The contract provides that B is to pay in installments over a five-year period following the conveyance, and that A is to convey on condition that B pledge specified collateral to secure his payment. Conveyance by A does not become due until B pledges the collateral. If the agreement does not provide for the time within which the collateral is to be pledged, A's duty is discharged if it is not pledged within a reasonable time.
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2. B gives A $10,000 to use in perfecting an invention, and A promises to repay it only out of royalties received during his lifetime from the sale of the patent rights. In spite of diligent efforts, A is unable to perfect his invention and obtain a patent, and no royalties are received. A dies after six years. B has no claim against A's estate. Receipt of royalties is a condition of A's duty to repay the money and A's duty is discharged by the non-occurrence of that condition during his lifetime.
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Illustrations:
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3. A contracts with B to build a house for $50,000, payable on condition that A present a certificate from C, B's architect, showing that the work has been properly completed. A properly completes the work, but C refuses to give the certificate because of collusion with B, and the non-occurrence of the condition is therefore excused. See § 239. Since the presentation of the architect's certificate is not part of the performances to be exchanged under the exchange of promises, A has a claim against B for $50,000.
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4. Under an option contract, A promises to sell B a painting “on condition that B pay $100,000” by a stated date. Before that date, the non-occurrence of the condition is excused by A's repudiation of the contract. See § 255. Since the payment of the $100,000 is B's part of the performances to be exchanged under the exchange of promises, B saved that amount when the non-occurrence of the condition was excused, and it should be subtracted in determining damages. B has a claim against A for the value of the painting to B less $100,000.
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5. A leases property to B for a stated monthly rental. The lease provides that A is under a duty to remove described property from the premises, and that its removal is a condition of B's duty to pay the rent. After A has removed most of the property from the premises, B says that he will pay the rent even though not all of it has been removed. The non-occurrence of the condition is excused and B is under a duty to pay the rent even though A does not remove the rest of the property. See § 84. But A's duty to remove the rest of the property is not discharged and his failure to remove the rest is a breach.
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Illustrations:
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6. A, a shipowner, promises to carry B's cargo on his ship to Portsmouth. B promises to pay A the stipulated freight on condition that A's ship sail directly there on its next sailing. A's ship carries B's cargo to Portsmouth, but puts into port on the way. Since carrying B's cargo directly to Portsmouth is a condition of B's duty, no duty to pay arises, and, since the condition can no longer occur, B's duty is discharged. Since A is under no duty to carry B's cargo directly to Portsmouth, however, his failure to do so is not a breach.
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7. The facts being otherwise as stated in Illustration 6, A promises to carry B's cargo on his ship directly to Portsmouth on its next sailing. Since carrying B's cargo directly to Portsmouth is a condition of B's duty, no duty to pay arises and, since the condition can no longer occur, B's duty is discharged. Since A is under a duty to carry B's cargo directly to Portsmouth, his failure to do so is also a breach.
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8. A contracts to sell and B to buy a house for $50,000, with the provision, “This contract is conditional on approval by X Bank of B's pending mortgage application.” Approval by X Bank is a condition of B's duty. B is under no duty that the X Bank approve his application, but a court will supply a term imposing on him a duty to make reasonable efforts to obtain approval. See §§ 204, 205.
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Illustration:
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9. The facts being otherwise as stated in Illustration 6, B refuses to pay the freight without knowing that A's ship has put into port on the way. B's refusal is not a breach since his duty is discharged.
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11.1.3 Restatement (Second) of Contracts §226 11.1.3 Restatement (Second) of Contracts §226
§ 226 How an Event May Be Made a Condition
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An event may be made a condition either by the agreement of the parties or by a term supplied by the court.
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Illustrations:
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1. A partnership agreement among physicians provides that A may withdraw from the partnership on three months' written notice to the partnership's executive committee, “but in the event that the committee requests him to revoke his notice of withdrawal prior to its effective date, and he refuses to comply, he shall not upon his withdrawal engage in the practice of medicine within a twenty-five mile radius.” A gives notice of his withdrawal. A request by the committee that A revoke his notice is a condition of A's duty not to practice medicine within a twenty-five mile radius.
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2. A, a tenant of B, promises to pay $1,000 for “such repairs as an architect appointed by B shall approve.” The appointment by B of an architect and the architect's approval of repairs are conditions of A's duty to pay for repairs.
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3. A sells an automobile to B, for which B promises to pay $5,000 “on demand.” A sues B for the $5,000 without first making a demand. A can recover. The quoted language is to be interpreted in the light of the purpose of the parties (§ 202(1)), and the purpose of such language, in connection with a promise that is one to pay money and is otherwise unconditional, is to fix the time after which interest at the legal rate is payable. A's suit should therefore not be dismissed merely because he did not demand payment, and a demand by A is not a condition of B's duty. The same interpretation follows by analogy from the rule of Uniform Commercial Code § 3-122(1)(b), under which a claim on a demand instrument arises on its date or date of issue.
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4. A contracts to sell and B to buy a house for $50,000. The contract contains the provision, “This contract is conditional on approval by X Bank of B's pending mortgage application.” Approval by X Bank is a condition of B's duty but not of A's duty. The quoted language is to be interpreted in the light of the purpose of the parties (§ 202(1)), and their purpose in including such a provision is to protect B and not A in the event that the application is not approved. If X Bank does not approve B's application, performance by B will not become due even if A makes a conditional offer to deliver a deed, but performance by A will become due if, in spite of X Bank's failure to approve B's application, B makes a conditional offer to pay the $50,000. Cf. Illustration 8 to § 225.
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Illustrations:
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5. A, an insurance company, insures B, a storekeeper, against safe burglary, “provided entry be made by actual force and violence, of which there are visible marks upon the exterior of all of the doors of the safe if entry is made through such doors.” A burglar robs B's safe by picking the lock of the outer door, leaving no visible marks, and punching out the lock of the inner door. If the requirement of visible marks on both doors is merely evidentiary, the condition occurs when there is as here, adequate evidence of force and violence to prevent fraudulent claims, even though there are no visible marks on the outer door. Since A was the draftsman of the policy, the meaning favorable to B is preferred (§ 206).
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6. A contracts to sell and B to buy a house for $50,000. The contract recites that financing is to take the form of “$30,000 mortgage from X Bank” on stated terms and provides that B's duty is “conditional upon B's ability to arrange above described financing.” B is unable to get the mortgage from X Bank but A offers to take a $30,000 purchase money mortgage on the stated terms and makes a conditional offer to deliver a deed. B refuses to perform. Although circumstances may show a contrary intention, the quoted language will ordinarily be interpreted so that the condition occurs only if B is able to get the mortgage from X Bank, and not if B is able to get a similar mortgage from A. Under this interpretation, B's refusal is not a breach.
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Illustrations:
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7. A promises to make necessary interior repairs on a building that he has leased to B, but reserves no privilege of entering the building. B's giving reasonable notice to A of any necessary interior repairs of which A would otherwise be unaware is a condition of A's duty to make those repairs, although B is under no duty to give notice.
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8. A, a general contractor, contracts with B, a town, to construct a sewer system, agreeing in addition to defend any action against the town arising out of the work and to pay any damages recovered in such an action. B's giving reasonable notice to A of the commencement of any action of which A would otherwise be unaware is a condition of A's duties to defend and pay damages, although B is under no duty to give notice.
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11.1.4 Restatement (Second) of Contracts §227 11.1.4 Restatement (Second) of Contracts §227
§ 227 Standards of Preference with Regard to Conditions
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1) 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.
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(2) Unless the contract is of a type under which only one party generally undertakes duties, when it is doubtful whether
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(a) a duty is imposed on an obligee that an event occur, or
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(b) the event is made a condition of the obligor's duty, or
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(c) the event is made a condition of the obligor's duty and a duty is imposed on the obligee that the event occur,
the first interpretation is preferred if the event is within the obligee's control. -
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(3) In case of doubt, an interpretation under which an event is a condition of an obligor's duty is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it has become a duty to perform.
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Illustrations:
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1. A, a general contractor, contracts with B, a sub-contractor, for the plumbing work on a construction project. B is to receive $100,000, “no part of which shall be due until five days after Owner shall have paid Contractor therefor.” B does the plumbing work, but the owner becomes insolvent and fails to pay A. A is under a duty to pay B after a reasonable time.
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2. A, a mining company, hires B, an engineer, to help reopen one of its mines for “$10,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for B's service. B performs the required services, but the attempt to reopen the mine is unsuccessful and A abandons it. A is under a duty to pay B $10,000 after the passage of a reasonable time.
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3. A, a mining company, contracts with B, the owner of an untested experimental patented process, to help reopen one of its mines for $5,000 paid in advance and an additional “$15,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for B's services. B performs the required services, but because the process proves to be unsuccessful, A abandons the attempt to reopen the mine. A is under no duty to pay B any additional amount. In all the circumstances the risk of failure of the process was, to that extent, assumed by B.
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4. A contracts to sell and B to buy land for $100,000. At the same time, A contracts to pay C, a real estate broker, as his commission, $5,000 “on the closing of title.” B refuses to consummate the sale. Absent a showing of a contrary intention, a court may conclude that C assumed this risk, and that A's duty is conditional on the sale being consummated. A is then under no duty to pay C.
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Illustrations:
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5. A contracts with B to repair B's building for $20,000, payment to be made “on the satisfaction of C, B's architect, and the issuance of his certificate.” A makes the repairs, but C refuses to issue his certificate, and explains why he is not satisfied. Other experts in the field consider A's performance to be satisfactory and disagree with C's explanation. A has no claim against B. The quoted language is sufficiently clear that Subsection (1) does not apply. If C is honestly not satisfied, B is under no duty to pay A, and it makes no difference if his dissatisfaction was not reasonable.
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6. The facts being otherwise as stated in Illustration 5, C refuses to issue his certificate although he admits that he is satisfied. A has a claim against B for $20,000. The quoted language will be interpreted so that the requirement of the certificate is merely evidentiary and the condition occurs when there is, as here, adequate evidence that C is honestly satisfied.
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7. The facts being otherwise as stated in Illustration 5, C does not make a proper inspection of the work and gives no reasons for his dissatisfaction. A has a claim against B for $20,000. In using the quoted language, A and B assumed that C would exercise an honest judgment and by failing to make a proper inspection, C did not exercise such a judgment. Since the parties have omitted an essential term to cover this situation, the court will supply a term (see § 204) requiring A to pay B if C ought reasonably to have been satisfied.
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8. The facts being otherwise as stated in Illustration 5, C makes a gross mistake with reference to the facts on which his refusal to give a certificate is based. A has a claim against B for $20,000. In using the quoted language, A and B assumed that C would exercise his judgment without a gross mistake as to the facts. Since the parties have omitted an essential term to cover this situation, the court will supply a term (see § 204) requiring A to pay B if C ought reasonably to have been satisfied.
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Illustrations:
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9. On August 1, A contracts to sell and B to buy goods, “selection to be made by buyer before September 1.” B merely has a duty to make his selection by September 1, and his making it by that date is not a condition of A's duty. A failure by B to make a selection by September 1 is a breach, and if material it operates as the non-occurrence of a condition of A's duty. See §§ 237, 241.
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10. A, B, and C make a contract under which A agrees to buy the inventory of B's grocery business, C agrees to finance A's down payment, and B agrees to subordinate A's obligation to him to pay the balance to A's obligation to C to repay the amount of the down payment. The contract provides that “C shall maintain the books of account for A, and shall inventory A's stock of merchandise every two months, rendering statements to B.” C merely has a duty to do these acts and doing them is not a condition of B's duty. A failure by C to do them is a breach, and if material it operates as the non-occurrence of a condition of B's duty. See §§ 237, 241.
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11. A insures B's house against fire for $50,000 under a policy providing, “other insurance is prohibited.” Because the insured has undertaken no other duties under the contract, Subsection (2) does not apply. Because a policy of fire insurance is a type of contract under which only the insurer generally undertakes duties, the absence of other insurance is merely a condition of A's duty, and B is not under a duty not to procure other insurance.
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Illustrations:
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12. In return for a fee paid by X, A signs and delivers to B a bond which reads: “I acknowledge myself to be indebted to B in the sum of $50,000. The condition of this obligation is such that if X shall faithfully perform his duties as executor of the will of Y, this obligation shall be void, but otherwise of full effect.” X's failure faithfully to perform his duties is a condition of A's duty under the bond.
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13. A promises to pay B $10,000 for a quantity of oil, and promises to pay B an additional $5,000 “but if a greater quantity of oil arrives in vessels during the first quarter of the year than arrived during the same quarter last year, then this obligation to be void.” A's payment of the additional $5,000 is not due until the end of the first quarter, and the failure of a greater quantity of oil to arrive by that time is a condition of A's duty to pay the additional $5,000.
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11.1.5 Restatement (Second) of Contracts §229 11.1.5 Restatement (Second) of Contracts §229
§ 229 Excuse of a Condition to Avoid Forfeiture
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To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.
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Illustrations:
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1. A contracts to build a house for B, using pipe of Reading manufacture. In return, B agrees to pay $75,000 in progress payments, each payment to be made “on condition that no pipe other than that of Reading manufacture has been used.” Without A's knowledge, a subcontractor mistakenly uses pipe of Cohoes manufacture which is identical in quality and is distinguishable only by the name of the manufacturer which is stamped on it. The mistake is not discovered until the house is completed, when replacement of the pipe will require destruction of substantial parts of the house. B refuses to pay the unpaid balance of $10,000. A court may conclude that the use of Reading rather than Cohoes pipe is so relatively unimportant to B that the forfeiture that would result from denying A the entire balance would be disproportionate, and may allow recovery by A subject to any claim for damages for A's breach of his duty to use Reading pipe.
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2. A, an ocean carrier, carries B's goods under a contract providing that it is a condition of A's liability for damage to cargo that “written notice of claim for loss or damage must be given within 10 days after removal of goods.” B's cargo is damaged during carriage and A knows of this. On removal of the goods, B notes in writing on the delivery record that the cargo is damaged, and five days later informs A over the telephone of a claim for that damage and invites A to participate in an inspection within the ten day period. A inspects the goods within the period, but B does not give written notice of its claim until 25 days after removal of the goods. Since the purpose of requiring the condition of written notice is to alert the carrier and enable it to make a prompt investigation, and since this purpose had been served by the written notice of damage and the oral notice of claim, the court may excuse the non-occurrence of the condition to the extent required to allow recovery by B.
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Illustrations:
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3. A contracts to make repairs on B's house, in return for which B agrees to pay $10,000 “on condition that the repairs are completed by October 1.” The repairs are not completed until October 2. A court may decide that there are two cumulative conditions, repair of the house and completion of the repairs by October 1, and that the non-occurrence of the second condition is excused to the extent of one day.
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4. On July 1, A makes an option contract with B, under which B has the right to buy land for $200,000, on condition that he exercise it no later than June 30 five years later. B makes an initial payment of $10,000 and agrees to make additional $10,000 payments on or before June 30 of each of the four succeeding years, unless he has already exercised the option, his right being “conditional on his paying the $10,000 on or before the prescribed date.” These payments are not to be applied to the purchase price. After paying for two years and building on adjacent land, substantially increasing the value of the land subject to the option, B mails a $10,000 check for the third year on June 30. A receives it on July 1 and returns it to B, stating that the option contract is cancelled. A court may decide that there are two cumulative conditions, payment of $10,000 and payment on or before June 30, and that the non-occurrence of the second condition is excused to the extent of one day.
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5. The facts being otherwise as in Illustration 4, B makes the payments on June 30 of each of the four succeeding years, but does not exercise the option by tendering the $200,000 until July 1, following the June 30 expiration date. Even if a court decides that there are two cumulative conditions, payment of $200,000 and payment on or before June 30, it may not decide that the non-occurrence of the second condition is excused to the extent of one day because that would give B a more extensive option than that on which the parties agreed.
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11.1.6 Restatement (Second) of Contracts §235 11.1.6 Restatement (Second) of Contracts §235
§ 235 Effect of Performance as Discharge and of Non-Performance as Breach
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(1) Full performance of a duty under a contract discharges the duty.
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(2) When performance of a duty under a contract is due any non-performance is a breach.
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Illustration:
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1. A contracts to build a house for B for $50,000 according to specifications furnished by B. A builds the house according to the specifications. A's duty to build the house is discharged.
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Illustrations:
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2. The facts being otherwise as stated in Illustration 1, A builds the house according to the specifications except for an inadvertent variation in kitchen fixtures which can easily be remedied for $100. A's non-performance is a breach.
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3. A contracts with B to manufacture and deliver 100,000 plastic containers for a price of $100,000. The colors of the containers are to be selected by B from among those specified in the contract. B delays in making his selection for an unreasonable time, holding up their manufacture and causing A loss. B's delay is a breach. His duty of good faith and fair dealing (§ 205) includes a duty to make his selection within a reasonable time.
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4. A contracts with B to repair B's building for $20,000, payment to be made “on the satisfaction of C, B's architect, and the issuance of his certificate.” A makes the repairs but does not ask C for his certificate. B does not pay A. B's non-performance is not a breach. It is justified on the ground that performance is not due because of the non-occurrence of a condition. See Illustration 5 to § 227.
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Illustration:
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5. A and B make an oral contract, unenforceable under the Statute of Frauds (§ 125), by which A promises to sell and B to buy land for $50,000. Although B tenders the money, A fails to tender a deed and later writes a letter to B which satisfies the Statute of Frauds. A's non-performance is a breach and gives rise to a claim for damages, even though the claim is unenforceable until A writes the letter. See Illustration 4 to § 133.
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11.1.7 Restatement (Second) of Contracts §245 11.1.7 Restatement (Second) of Contracts §245
§ 245 Effect of a Breach by Non-Performance as Excusing the Non-Occurrence of a Condition
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Where a party's breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.
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Illustrations:
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1. A contracts with B to repair B's building for $20,000, payment to be made “on the satisfaction of C, B's architect, and the issuance of his certificate.” A fully performs his duty to make the repairs, but B induces C to refuse to issue his certificate. A has a claim against B for $20,000. B's breach of his duty of good faith and fair dealing contributed materially to the non-occurrence of the condition, the issuance of the certificate, excusing it. Cf. Illustrations 5, 6, 7, and 8 to § 227.
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2. A contracts to sell and B to buy land for $100,000. At the same time A contracts to pay C, a real estate broker, as his commission, $5,000 “on the closing of title.” A unjustifiably refuses to consummate the sale. C has a claim against A for $5,000, less any expenses that C saved because the sale was not consummated. A's breach of his duty of good faith and fair dealing contributed materially to the non-occurrence of the condition, the closing of title, excusing it. See Illustration 4 to § 227.
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3. A contracts to sell and B to buy a house for $50,000, with the provision, “This contract is conditional on approval by X Bank of B's pending mortgage application.” B fails to make reasonable efforts to obtain approval and, when the X Bank disapproves the application, refuses to perform when A tenders a deed. A has a claim against B for total breach of contract. B's breach of his duty of good faith and fair dealing contributed materially to the non-occurrence of the condition, approval of the application, excusing it. Cf. Illustration 8 to § 225.
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4. A contracts to sell and B to buy A's rights as one of three lessees under a mining lease in Indian lands. The contract states that it is “subject only to approval by the Secretary of the Interior,” which is required by statute. B files a request for approval but A fails to support B's request by giving necessary cooperation. Approval is denied and A cannot convey his rights. B has a claim against A for total breach of contract. A's breach of his duty of good faith and fair dealing contributed materially to the non-occurrence of the condition, approval by the Secretary of the Interior, excusing it.
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Illustrations:
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5. A and B, about to become man and wife, make an ante-nuptial contract under which A is to pay B $100,000 if B survives A. Four years after their marriage, A shoots both B and himself. B dies instantly and A dies the following day. B's estate has a claim against A's estate for $100,000. A's breach of his duty of good faith and fair dealing contributed materially to the non-occurrence of the condition, B's surviving A, excusing it. The fact that B's estate cannot show that B would otherwise have survived A does not prevent it from recovering the $100,000. Compare the rule on certainty in § 352.
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6. A, the owner of a manufacturing plant, contracts to transfer the plant to B. B is to pay A $500,000 plus a bonus of $100,000 if the profits from the plant exceed a stated amount during the first year of its operation. Six months after the transfer B sells the plant to C, who dismantles it. B refuses to pay the bonus. Whether A has a claim against B depends on whether B's failure to operate the plant for a year is a breach of his duty of good faith and fair dealing which contributed materially to the non-occurrence of the condition, the profits exceeding the stated amount during the first year, excusing it. The fact that A cannot show that the profits would otherwise have exceeded the stated amount does not prevent him from recovering. If, however, B shows that they would not have exceeded that amount, A cannot recover. Compare the rule on certainty in § 352.
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7. The facts being otherwise as stated in Illustration 4, A shows that even if he had given his cooperation, the Secretary of the Interior would have withheld approval on other grounds. B has no claim against A for breach of contract. A's breach of his duty of good faith and fair dealing did not contribute materially to the non-occurrence of the condition, and its non-occurrence is not excused.
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11.1.8 Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. 11.1.8 Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co.
[660 NE2d 415, 636 NYS2d 734]
Oppenheimer & Co., Inc., Respondent, v Oppenheim, Appel, Dixon & Co., Appellant.
Argued October 25, 1995;
decided November 30, 1995
*686POINTS OF COUNSEL
Fennell & Chiappone LLP, New York City (Darrell K. Fennell and Michael Winger of counsel), for appellant. I.
Plaintiff failed to satisfy the conditions of the agreement to sublease. (Jacob & Youngs v Kent, 230 NY 239; Van Iderstine Co. v Barnet Leather Co., 242 NY 425; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; High Fashions Hair Cutters v Commercial Union Ins. Co., 145 AD2d 465; J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392; United Skates v Kaplan, 96 AD2d 232; Ting v Dean, 156 AD2d 358; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Lawrence v Miller, 86 NY 131.) II. In the alternative, defendant is entitled to a new trial, on "substantial performance.” (Razza v Sanchez-Roda, 173 AD2d 594.) III. As a matter of law, plaintiff suffered no damages. (Rutzen v Monroe County Long Term Care Program, 104 Misc 2d 1000; Silinsky v State-Wide Ins. Co., 30 AD2d 1; Drinkwater v Dinsmore, 80 NY 390.)
Kaye, Scholer, Fierman, Hays & Handler, New York City (Gregory J. Wallance, Jeffrey A. Fuisz and Gregory E. Bylinsky of counsel), for respondent.
I. The Court below correctly found that substantial performance was a question of fact for the jury. (Jacob & Youngs v Kent, 230 NY 239; Hadden v Consolidated Edison Co., 34 NY2d 88, 45 NY2d 466; Duenenwald Print. Corp. v Putnam’s Sons, 301 NY 569; City of New York v *687 Flatto, 271 NY 244; Dudley v Perkins, 248 NY 250; Desmond-Dunne Co. v Friedman-Doscher Co., 162 NY 486; Thomas v Gage, 156 NY 612; Stokes v Mackay, 147 NY 223; High Fashions Hair Cutters v Commercial Union Ins. Co., 145 AD2d 465; Pioneer Vil. Dev. Corp. v XAR Corp., 55 AD2d 769.) II. Appellant is not entitled to a new trial. (Steel Stor. & El. Constr. Co. v Stock, 225 NY 173.) III. Since respondent was damaged by appellant’s breach of contract, evidence of collateral payments pursuant to the takeover agreement was properly barred. (Rutzen v Monroe County Long Term Care Program, 104 Misc 2d 1000; Silinsky v State-Wide Ins. Co., 30 AD2d 1; Szybura v City of Elmira, 28 AD2d 1154; Anastasia v Barnes, 127 Misc 2d 971; Gusikoff v Republic Stor. Co., 241 App Div 889; Carney v Morrison, 223 App Div 244, 249 NY 511; Gray v Pashkow, 168 AD2d 849; Hartnett v Reiss S. S. Co., 421 F2d 1011, cert denied sub nom. Grain Handling Co. v Hartnett, 400 US 852.)
OPINION OF THE COURT
The parties entered into a letter agreement setting forth certain conditions precedent to the formation and existence of a sublease between them. The agreement provided that there would be no sublease between the parties "unless and until” plaintiff delivered to defendant the prime landlord’s written consent to certain "tenant work” on or before a specified deadline. If this condition did not occur, the sublease was to be deemed "null and void.” Plaintiff provided only oral notice on the specified date. The issue presented is whether the doctrine of substantial performance applies to the facts of this case. We conclude it does not for the reasons that follow.
I.
In 1986, plaintiff Oppenheimer & Co. moved to the World Financial Center in Manhattan, a building constructed by Olympia & York Company (O & Y). At the time of its move, plaintiff had three years remaining on its existing lease for the 33rd floor of the building known as One New York Plaza. As an incentive to induce plaintiff’s move, O & Y agreed to make the rental payments due under plaintiff’s rental agreement in the event plaintiff was unable to sublease its prior space in One New York Plaza.
In December 1986, the parties to this action entered into a *688conditional letter agreement to sublease the 33rd floor. Defendant already leased space on the 29th floor of One New York Plaza and was seeking to expand its operations. The proposed sublease between the parties was attached to the letter agreement. The letter agreement provided that the proposed sublease would be executed only upon the satisfaction of certain conditions. Pursuant to paragraph 1 (a) of the agreement, plaintiff was required to obtain "the Prime Landlord’s written notice of confirmation, substantially to the effect that [defendant] is a subtenant of the Premises reasonably acceptable to Prime Landlord.” If such written notice of confirmation were not obtained "on or before December 30, 1986, then this letter agreement and the Sublease * * * shall be deemed null and void and of no further force and effect and neither party shall have any rights against nor obligations to the other.”
Assuming satisfaction of the condition set forth in paragraph 1 (a), defendant was required to submit to plaintiff, on or before January 2, 1987, its plans for "tenant work” involving construction of a telephone communication linkage system between the 29th and 33rd floors. Paragraph 4 (c) of the letter agreement then obligated plaintiff to obtain the prime landlord’s "written consent” to the proposed "tenant work” and deliver such consent to defendant on or before January 30, 1987. Furthermore, if defendant had not received the prime landlord’s written consent by the agreed date, both the agreement and the sublease were to be deemed "null and void and of no further force and effect,” and neither party was to have "any rights against nor obligations to the other.” Paragraph 4 (d) additionally provided that, notwithstanding satisfaction of the condition set forth in paragraph 1 (a), the parties "agree not to execute and exchange the Sublease unless and until * * * the conditions set forth in paragraph (c) above are timely satisfied.”
The parties extended the letter agreement’s deadlines in writing and plaintiff timely satisfied the first condition set forth in paragraph 1 (a) pursuant to the modified deadline. However, plaintiff never delivered the prime landlord’s written consent to the proposed tenant work on or before the modified final deadline of February 25, 1987. Rather, plaintiff’s attorney telephoned defendant’s attorney on February 25 and informed defendant that the prime landlord’s consent had been secured. On February 26, defendant, through its attorney, informed plaintiff’s attorney that the letter agreement and sublease were invalid for failure to timely deliver the *689prime landlord’s written consent and that it would not agree to an extension of the deadline. The document embodying the prime landlord’s written consent was eventually received by plaintiff on March 20, 1987, 23 days after expiration of paragraph 4 (c)’s modified final deadline.
Plaintiff commenced this action for breach of contract, asserting that defendant waived and/or was estopped by virtue of its conduct1 from insisting on physical delivery of the prime landlord’s written consent by the February 25 deadline. Plaintiff further alleged in its complaint that it had substantially performed the conditions set forth in the letter agreement.
At the outset of trial, the court issued an order in limine barring any reference to substantial performance of the terms of the letter agreement. Nonetheless, during the course of trial, the court permitted the jury to consider the theory of substantial performance, and additionally charged the jury concerning substantial performance. Special interrogatories were submitted. The jury found that defendant had properly complied with the terms of the letter agreement, and answered in the negative the questions whether defendant failed to perform its obligations under the letter agreement concerning submission of plans for tenant work, whether defendant by its conduct waived the February 25 deadline for delivery by plaintiff of the landlord’s written consent to tenant work, and whether defendant by its conduct was equitably estopped from requiring plaintiff’s strict adherence to the February 25 deadline. Nonetheless, the jury answered in the affirmative the question, "Did plaintiff substantially perform the conditions set forth in the Letter Agreement?,” and awarded plaintiff damages of $1.2 million.
Defendant moved for judgment notwithstanding the verdict. Supreme Court granted the motion, ruling as a matter of law that "the doctrine of substantial performance has no application to this dispute, where the Letter Agreement is free of all ambiguity in setting the deadline that plaintiff concededly did not honor.” The Appellate Division reversed the judgment on the law and facts, and reinstated the jury verdict. The Court concluded that the question of substantial compliance was *690properly submitted to the jury and that the verdict should be reinstated because plaintiffs failure to deliver the prime landlord’s written consent was inconsequential.
This Court granted defendant’s motion for leave to appeal and we now reverse.
II.
Defendant argues that no sublease or contractual relationship. ever arose here because plaintiff failed to satisfy the condition set forth in paragraph 4 (c) of the letter agreement. Defendant contends that the doctrine of substantial performance is not applicable to excuse plaintiffs failure to deliver the prime landlord’s written consent to defendant on or before the date specified in the letter agreement and that the Appellate Division erred in holding to the contrary. Before addressing defendant’s arguments and the decision of the court below, an understanding of certain relevant principles is helpful.
A condition precedent is "an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises” (Calamari and Perillo, Contracts § 11-2, at 438 [3d ed]; see, Restatement [Second] of Contracts § 224; see also, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112-113). Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself (see, M.K. Metals v Container Recovery Corp., 645 F2d 583). In the latter situation, no contract arises "unless and until the condition occurs” (Calamari and Perillo, Contracts § 11-5, at 440 [3d ed]).
Conditions can be express or implied. Express conditions are those agreed to and imposed by the parties themselves. Implied or constructive conditions are those "imposed by law to do justice” (Calamari and Perillo, Contracts § 11-8, at 444 [3d ed]). Express conditions must be literally performed, whereas constructive conditions, which ordinarily arise from language of promise, are subject to the precept that substantial compliance is sufficient. The importance of the distinction has been explained by Professor Williston:
"Since an express condition * * * depends for its validity on the manifested intention of the parties, *691it has the same sanctity as the promise itself. Though the court may regret the harshness of such a condition, as it may regret the harshness of a promise, it must, nevertheless, generally enforce the will of the parties unless to do so will violate public policy. Where, however, the law itself has imposed the condition, in absence of or irrespective of the manifested intention of the parties, it can deal with its creation as it pleases, shaping the boundaries of the constructive condition in such a way as to do justice and avoid hardship”. (5 Williston, Contracts § 669, at 154 [3d ed].)
In determining whether a particular agreement makes an event a condition courts will interpret doubtful language as embodying a promise or constructive condition rather than an express condition. This interpretive preference is especially strong when a finding of express condition would increase the risk of forfeiture by the obligee (see, Restatement [Second] of Contracts § 227 [1]).
Interpretation as a means of reducing the risk of forfeiture cannot be employed if "the occurrence of the event as a condition is expressed in unmistakable language” (Restatement [Second] of Contracts § 229, comment a, at 185; see, § 227, comment b [where language is clear, "(t)he policy favoring freedom of contract requires that, within broad limits, the agreement of the parties should be honored even though forfeiture results”]). Nonetheless, the nonoccurrence of the condition may yet be excused by waiver, breach or forfeiture. The Restatement posits that "[t]o the extent that the nonoccurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange” (Restatement [Second] of Contracts § 229).
Turning to the case at bar, it is undisputed that the critical language of paragraph 4 (c) of the letter agreement unambiguously establishes an express condition precedent rather than a promise, as the parties employed the unmistakable language of condition ("if,” "unless and until”). There is no doubt of the parties’ intent and no occasion for interpreting the terms of the letter agreement other than as written.
Furthermore, plaintiff has never argued, and does not now contend, that the nonoccurrence of the condition set forth in *692paragraph 4 (c) should be excused on the ground of forfeiture.2 Rather, plaintiffs primary argument from the inception of this litigation has been that defendant waived or was equitably estopped from invoking paragraph 4 (c). Plaintiff argued secondarily that it substantially complied with the express condition of delivery of written notice on or before February 25th in that it gave defendant oral notice of consent on the 25th.
Contrary to the decision of the Court below, we perceive no justifiable basis for applying the doctrine of substantial performance to the facts of this case. The flexible concept of substantial compliance "stands in sharp contrast to the requirement of strict compliance that protects a party that has taken the precaution of making its duty expressly conditional” (2 Farnsworth, Contracts § 8.12, at 415 [2d ed 1990]). If the parties "have made an event a condition of their agreement, there is no mitigating standard of materiality or substantiality applicable to the non-occurrence of that event” (Restatement [Second] of Contracts § 237, comment d, at 220). Substantial performance in this context is not sufficient, "and if relief is to be had under the contract, it must be through excuse of the non-occurrence of the condition to avoid forfeiture” (id.; see, Brown-Marx Assocs. v Emigrant Sav. Bank, 703 F2d 1361, 1367-1368 [11th Cir]; see also, Childres, Conditions in the Law of Contracts, 45 NYU L Rev 33, 35).
Here, it is undisputed that plaintiff has not suffered a forfeiture or conferred a benefit upon defendant. Plaintiff alludes to a $1 million licensing fee it allegedly paid to the prime landlord for the purpose of securing the latter’s consent to the subleasing of the premises. At no point, however, does plaintiff claim that this sum was forfeited or that it was expended for the purpose of accomplishing the sublease with defendant. It is further undisputed that O & Y, as an inducement to effect plaintiff’s move to the World Financial Center, promised to indemnify plaintiff for damages resulting from failure to sublease the 33rd floor of One New York Plaza. Consequently, because the critical concern of forfeiture or unjust enrichment is simply not present in this case, we are not presented with an occasion to consider whether the doc*693trine of substantial performance is applicable, that is, whether the courts should intervene to excuse the nonoccurrence of a condition precedent to the formation of a contract.
The essence of the Appellate Division’s holding is that the substantial performance doctrine is universally applicable to all categories of breach of contract, including the nonoccurrence of an express condition precedent. However, as discussed, substantial performance is ordinarily not applicable to excuse the nonoccurrence of an express condition precedent.
Our precedents are consistent with this general principle. In Maxton Bldrs. v Lo Galbo (68 NY2d 373) the defendants contracted on August 3 to buy a house, but included in the contract the condition that if real estate taxes were found to be above $3,500 they would have the right to cancel the contract upon written notice to the seller within three days. On August 4 the defendants learned that real estate taxes would indeed exceed $3,500. The buyers’ attorney called the seller’s attorney and notified him that the defendants were exercising their option to cancel. A certified letter was sent notifying the seller’s attorney of that decision on August 5 but was not received by the seller’s attorney until August 9. We held the cancellation ineffective and rejected defendants’ argument that reasonable notice was all that was required, stating: "It is settled * * * that when a contract requires that written notice be given within a specified time, the notice is ineffective unless the writing is actually received within the time prescribed” (id., at 378). We so held despite the fact that timely oral notice was given and the contract did not provide that time was of the essence.
In Jungmann & Co. v Atterbury Bros. (249 NY 119) the parties entered into a written contract for the sale of 30 tons of casein. The contract contained the following clause: "Shipment: May-June from Europe. Advice of shipment to be made by cable immediately goods are dispatched” (id.). Plaintiff shipped the first 15 tons but gave no notice to the defendant, who rejected the shipment. Plaintiff thereafter shipped the remaining 15 tons to defendant, but again failed to provide notice by cable and instead sent two letters. Defendant rejected the remaining 15 tons. This Court was not persuaded by the argument that the defendant had received notice of shipment by other means and thus suffered no harm. "Even if that be true,” we stated, "the fact remains that the plaintiff was obligated under its contract to see that defendant ob*694tained advice of shipment by cable” (id., at 121). Plaintiffs failure to "perform[ ] all conditions precedent required of it,” and "to give notice according to the terms of the contract” barred it from recovery (id., at 122).
Plaintiffs reliance on the well-known case of Jacob & Youngs v Kent (230 NY 239) is misplaced. There, a contractor built a summer residence and the buyer refused to pay the remaining balance of the contract price on the ground that the contractor used a different type of pipe than was specified in the contract. The buyer sought to enforce the contract as written. This would have involved the demolition of large parts of the structure at great expense and loss to the seller. This Court, in an opinion by then-Judge Cardozo, ruled for the contractor on the ground that "an omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture” (230 NY, at 241). But Judge Cardozo was careful to note that the situation would be different in the case of an express condition:
"This is not to say that the parties are not free by apt and certain words to effectuate a purpose that performance of every term shall be a condition of recovery. That question is not here. This is merely to say that the law will be slow to impute the purpose, in the silence of the parties, where the significance of the default is grievously out of proportion to the oppression of the forfeiture” (id., at 243-244).
The quoted language contradicts the Appellate Division’s proposition that the substantial performance doctrine applies universally, including when the language of the agreement leaves no doubt that an express condition precedent was intended (see, 205 AD2d, at 414). More importantly, Jacob & Youngs lacks determinative significance here on the additional ground that plaintiff conferred no benefit upon defendant. The avoidance-of-forfeiture rationale which engendered the rule of Jacob & Youngs is simply not present here, and the case therefore "should not be extended by analogy where the reason for the rule fails” (Van Iderstine Co. v Barnet Leather Co., 242 NY 425, 434).
The lease renewal and insurance cases relied upon by plaintiff are clearly distinguishable and explicable on the basis of the risk of forfeiture existing therein. For example, in Sy *695 Jack Realty Co. v Pergament Syosset Corp. (27 NY2d 449, 452), this Court gave effect to a late notice of lease renewal. Importantly, while we reaffirmed the general rule "that notice, when required to be 'given’ by a certain date, is insufficient and ineffectual if not received within the time specified,” we held that the prior courts properly invoked the rule that equity "relieves against * * * forfeitures of valuable lease terms when default in notice has not prejudiced the landlord” (id,., quoting Jones v Gianferante, 305 NY 135, 138; see also, J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 397 ["when a tenant in possession under an existing lease has neglected to * * * renew, he might suffer a forfeiture if he has made valuable improvements on the property”]). We stated: "Since a long-standing location for a retail business is an important part of the good will of that enterprise, the tenant stands to lose a substantial and valuable asset” (id., 22 NY2d, at 453).
III.
In sum, the letter agreement provides in the clearest language that the parties did not intend to form a contract "unless and until” defendant received written notice of the prime landlord’s consent on or before February 25, 1987. Defendant would lease the 33rd floor from plaintiff only on the condition that the landlord consent in writing to a telephone communication linkage system between the 29th and 33rd floors and to defendant’s plans for construction effectuating that linkage. This matter was sufficiently important to defendant that it would not enter into the sublease "unless and until” the condition was satisfied. Inasmuch as we are not dealing here with a situation where plaintiff stands to suffer some forfeiture or undue hardship, we perceive no justification for engaging in a "materiality-of-the-nonoccurrence” analysis. To do so would simply frustrate the clearly expressed intention of the parties. Freedom of contract prevails in an arm’s length transaction between sophisticated parties such as these, and in the absence of countervailing public policy concerns there is no reason to relieve them of the consequences of their bargain. If they are dissatisfied with the consequences of their agreement, "the time to say so [was] at the bargaining table” (Maxton, supra, at 382).
Finally, the issue of substantial performance was not for the jury to resolve in this case. A determination whether *696there has been substantial performance is to be answered, "if the inferences are certain, by the judges of the law” (Jacob & Youngs v Kent, 230 NY 239, 243, supra).
Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.
Order reversed, etc.
11.1.9 Restatement (2d) Sections on Conditions 11.1.9 Restatement (2d) Sections on Conditions
Restatement (Second) of Contracts – Conditions
224 – Condition Defined
A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
227 – Standards of Preference with Regard to Conditions
(1) 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.
(2) Unless the contract is of a type under which only one party generally undertakes duties, when it is doubtful whether
(a) a duty is imposed on an obligee that an event occur, or
(b) the event is made a condition of the obligor's duty, or
(c) the event is made a condition of the obligor's duty and a duty is imposed on the obligee that the event occur,
the first interpretation is preferred if the event is within the obligee's control.
(3) In case of doubt, an interpretation under which an event is a condition of an obligor's duty is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it has become a duty to perform.
234 – Order of Performances
(1) Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary.
(2) Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary.
238 -- Effect on Other Party's Duties of a Failure to Offer Performance
Where all or part of the performances to be exchanged under an exchange of promises are due simultaneously, it is a condition of each party's duties to render such performance that the other party either render or, with manifested present ability to do so, offer performance of his part of the simultaneous exchange.
11.2 Constructive Conditions and Substantial Performance 11.2 Constructive Conditions and Substantial Performance
11.2.1 Restatement (Second) of Contracts §234 11.2.1 Restatement (Second) of Contracts §234
§ 234 Order of Performances
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(1) Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary.
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(2) Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary.
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Illustrations:
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1. A promises to sell land to B, delivery of the deed to be on July 1. B promises to pay A $50,000, payment to be made on July 1. Delivery of the deed and payment of the price are due simultaneously.
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2. A promises to sell land to B, the deed to be delivered on July 1. B promises to pay A $50,000, no provision being made for the time of payment. Delivery of the deed and payment of the price are due simultaneously.
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3. A promises to sell land to B and B promises to pay A $50,000, no provision being made for the time either of delivery of the deed or of payment. Delivery of the deed and payment of the price are due simultaneously.
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4. A promises to sell land to B, delivery of the deed to be on or before July 1. B promises to pay A $50,000, payment to be on or before July 1. Delivery of the deed and payment of the price are due simultaneously.
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5. A promises to sell land to B, delivery of the deed to be on or before July 1. B promises to pay A $50,000, payment to be on or before August 1. Delivery of the deed and payment of the prices are not due simultaneously.
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Illustrations:
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6. A promises to sell land to B, delivery of the deed to be four years from the following July 1. B promises to pay A $50,000 in installments of $10,000 on each July 1 for five years. Delivery of the deed and payment of the last installment are due simultaneously.
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7. A promises to sell land to B, delivery of the deed to be one year from July 1. B promises to pay A $50,000 in installments of $10,000 on each July 1 for five years. Delivery of the deed and payment of the second installment are due simultaneously.
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Illustration:
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8. The facts being otherwise as stated in Illustration 6, B duly pays the first three installments, but unjustifiably does not pay the fourth until the fifth is due. If B's failure to pay the fourth installment discharges A's remaining duties of performance under the rule stated in § 237, A has a claim for damages for total breach (§ 243(1)), and no further performance is due from either party. Otherwise B's failure to pay the fourth installment gives rise to only a claim for damages for partial breach because of the delay, and, unless circumstances make it appropriate for A to require B to pay the fourth installment first, delivery of the deed and payment of the fourth and fifth installments are then due simultaneously.
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Illustrations:
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9. A contracts to do the concrete work on a building being constructed by B for $10 a cubic yard. In the absence of language or circumstances indicating the contrary, payment by B is not due until A has finished the concrete work.
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10. The facts being otherwise as stated in Illustration 9, B promises to furnish a bond to secure his payment. No provision is made as to the time for furnishing the bond. No performance by A is due until B has furnished the bond. Although the doing of the concrete work by A requires a period of time and the furnishing of the bond by B does not, the circumstance that the bond is required to secure payment by B indicates that B must furnish the bond first.
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11. A contracts to make alterations in B's home for $5,000. $500 is to be paid on the signing of the contract, $1,500 on the starting of work, $2,000 on the completion of rough carpentry and rough plumbing, and $1,000 on the completion of the job. Payment by B is due as the work progresses according to the terms of the contract.
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12. A promises to sell land to B, in return for which B promises to pay A $10,000 a year for five years on July 1 of each year. No provision is made as to the time for delivery of a deed. Delivery of a deed is not due until July 1 of the fifth year, at which time delivery of the deed and payment of the last installment are due simultaneously. See Illustration 6.
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11.2.2 Restatement (Second) of Contracts §237 11.2.2 Restatement (Second) of Contracts §237
§ 237 Effect on Other Party's Duties of a Failure to Render Performance
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Except as stated in § 240, it is a condition of each party's remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.
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Illustrations:
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1. A contracts to build a house for B for $50,000, progress payments to be made monthly in an amount equal to 85% of the price of the work performed during the preceding month, the balance to be paid on the architect's certificate of satisfactory completion of the house. Without justification B fails to make a $5,000 progress payment. A thereupon stops work on the house and a week goes by. A's failure to continue the work is not a breach and B has no claim against A. B's failure to make the progress payment is an uncured material failure of performance which operates as the non-occurrence of a condition of A's remaining duties of performance under the exchange. If B offers to make the delayed payment and in all the circumstances it is not too late to cure the material breach, A's duties to continue the work are not discharged. A has a claim against B for damages for partial breach because of the delay.
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2. The facts being otherwise as stated in Illustration 1, B fails to make the progress payment or to give any explanation or assurances for one month. If, in all the circumstances, it is now too late for B to cure his material failure of performance by making the delayed payment, A's duties to continue the work are discharged. Because B's failure to make the progress payment was a breach, A also has a claim against B for total breach of contract (§ 243).
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3. A, a theater manager, contracts with B, an actress, for performance by her for a period of six months in a play that A is about to present. B dies during the first week of the performance. A's remaining duties with respect to the exchange of performances are discharged by B's uncured material failure of performance. Because B's failure is justified on the ground of impossibility (§ 262), A has no claim against B's estate.
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Illustrations:
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4. A contracts to sell and B to buy at a stated price four parcels of land which A does not own but which the parties expect A to acquire by purchase at a foreclosure sale. A bids on the four parcels at the foreclosure sale, but each time B bids against him and acquires all four for less than the contract price. A does not convey the four parcels to B. B has no claim against A. B's bidding at the sale was a material breach of his duty of good faith and fair dealing (§ 205), which operated as the non-occurrence of a condition of A's duties and discharged them.
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5. A, a contractor, and B, a subcontractor, make a contract under which B promises to install sewer pipe in a trench which A is to dig and maintain during installation. A unjustifiably so fails to maintain the trench that it fills with water, severely hindering installation. B thereupon stops work and refuses to continue unless the breach is cured. A does not cure his breach. If A's breach is material (§ 241), it operates as the non-occurrence of a condition of B's duty to build the sewer, discharging it, and A has no claim against B. If A's breach is not material, B's duties are not discharged, and B's stopping work and refusing to continue is a breach.
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6. A contracts to sell and B to buy on 30 days credit 3,000 tons of iron rails at a stated price. B purchases iron rails heavily from various sources for use in his business, and in consequences A has difficulty in securing 3,000 tons and the market price is substantially increased. A fails to deliver the rails. B has a claim against A for breach of contract. B's purchase of iron rails from other sources for use in his business is not a failure of performance because B is under no duty to refrain from purchasing for that purpose. A's failure to deliver the rails is therefore a breach.
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7. The facts being otherwise as stated in Illustration 6, B maliciously buys iron rails heavily from various sources in order to prevent A from performing his contract with B. B has no claim against A. B's malicious purchase of iron rails from other sources is material breach of his duty of good faith and fair dealing (§ 204), which operates as the non-occurrence of a condition of A's duty to deliver the rails, discharging it.
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Illustrations:
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8. A and B make an employment contract. After the service has begun, A, the employee, commits a material breach of his duty to give efficient service that would justify B in discharging him. B is not aware of this but discharges A for an inadequate reason. A has no claim against B for discharging him. B has a claim against A for damages for total breach (§ 243) based on B's loss due to A's failure to give efficient service up to the time of discharge, but not for damages based on the loss of A's services after that time, because that loss was caused by B's discharge of A and not by A's failure to give efficient service.
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9. A contracts to sell and B to buy goods on 30 days credit. A delivers defective goods, which B rejects in ignorance of their defects. A has no claim against B. B has a claim against A for total breach (§ 243), but can recover nominal damages only since the unavailability of the goods to B was caused by B's rejection and not by their defects.
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10. The facts being otherwise as stated in Illustration 9, when B rejects the goods he states an insufficient reason, which induces a failure by A to cure the defects in the goods. B is precluded from relying on the defects to justify his rejection, not because of his ignorance itself, but because his giving of an insufficient reason for rejection excused the non-occurrence of the condition of his duty to take and pay for the goods (§ 248; Uniform Commercial Code § 2-605).
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Illustration:
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11. A contracts to build a house for B, for which B promises to pay $50,000 in monthly progress payments equal to 85% of the value of the work with the balance to be paid on completion. When A completes construction, B refuses to pay the $7,500 balance claiming that there are defects that amount to an uncured material breach. If the breach is material, A's performance is not substantial and he has no claim under the contract against B, although he may have a claim in restitution (§ 374). If the breach is not material, A's performance is said to be substantial, he has a claim under the contract against B for $7,500, and B has a claim against A for damages because of the defects.
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Illustration:
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12. A contracts to build a building for B. B delays making the site available to A, giving A a claim against B for damages for partial breach. A then commits a material breach and B properly cancels the contract. B has a claim against A for damages for total breach, but A still has a claim against B for damages for partial breach.
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11.2.3 Restatement (Second) of Contracts §238 11.2.3 Restatement (Second) of Contracts §238
§ 238 Effect on Other Party's Duties of a Failure to Offer Performance
Where all or part of the performances to be exchanged under an exchange of promises are due simultaneously, it is a condition of each party's duties to render such performance that the other party either render or, with manifested present ability to do so, offer performance of his part of the simultaneous exchange.
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Illustrations:
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1. A contracts to sell and B to buy a machine for $10,000, delivery of the machine and payment of the price to be made at a stated place on July 1. On July 1 both parties are present at that place, but A neither delivers nor offers to deliver the machine and B neither pays nor offers to pay the price. A has no claim against B, and B has no claim against A. See Uniform Commercial Code §§ 2-507(1) and 2-511(1). If, however, B had committed a material breach by failing to go to the stated place, A would have had a claim against B for damages for total breach. See §§ 237, 243.
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2. The facts being otherwise as stated in Illustration 1, on July 2, B, with manifested present ability to do so, offers to pay the price if A simultaneously delivers the machine, but A refuses to deliver the machine. If the delay of one day does not exceed the time after which A is discharged (§ 242), A's refusal is a breach. If it exceeds that time, B has no claim against A.
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Illustration:
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3. A contracts to sell and B to buy land for $50,000. The land is to be conveyed free of liens and encumbrances, but B knows that it is subject to a $30,000 mortgage held by C which A expects to satisfy out of the $50,000 purchase price. A, in the presence of B and C, makes a conditional offer of a deed of the property subject to the mortgage, and both A and C present documents that are legally sufficient to satisfy the mortgage debt to be delivered immediately on payment of the price by B. B thereupon refuses to pay the price. In view of the circumstances at the time the contract was made, A's offer is sufficient, and A has a claim against B for damages for total breach of contract.
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Illustrations:
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4. The facts being otherwise as stated in Illustration 1, on July 1, A puts the machine at B's disposition and requests that he pay for it. B refuses to pay and A, after attempting unsuccessfully to resell the machine, brings an action for the price under Uniform Commercial Code § 2-709. A court will award judgment for the full price only if A holds the machine for the buyer during the action. See Uniform Commercial Code § 2-709(2).
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5. A promises to sell real estate to B, delivery of the deed to be four years from July 1. B promises to pay $50,000 in installments of $10,000 on each July 1 for five years. B duly pays the first three installments but does not pay the fourth, and A brings an action to recover it. A has judgment but the judgment is not collected until after the July 1 when the payment of the fifth installment and the delivery are due. The court will restrain collection of the judgment until A makes an offer to transfer the real estate conditional on being paid the amount of the judgment and also the fifth installment of the price. See Illustration 8 to § 234 and Illustration 2 to § 358.
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11.2.4 Restatement (Second) of Contracts §239 11.2.4 Restatement (Second) of Contracts §239
§ 239 Effect on Other Party's Duties of a Failure Justified by Non-Occurrence of a Condition
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(2) The rule stated in Subsection (1) does not apply if the other party assumed the risk that he would have to perform in spite of such a failure.
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Illustration:
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1. A contracts to sell and B to buy a house for $50,000. The contract contains the provision, “This contract is conditional on approval by X Bank of B's pending mortgage application.” Approval by X Bank is a condition of B's duty, and therefore if X Bank does not approve B's application, performance by B will not become due, even if A makes an offer of a deed. But it is not a condition of A's duty and therefore performance by A will become due if, although X Bank does not approve B's application, B makes an offer to pay $50,000. See Illustration 4 to § 226. Under the rule stated in this Section, performance by A will not become due if B does not pay or offer to pay $50,000 because A did not assume the risk that he would nonetheless have to perform.
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Illustrations:
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2. A, a general contractor, contracts with B, a subcontractor, for the plumbing work on a construction project. B is to receive $100,000, payable monthly as the work progresses “on condition that Owner shall have paid Contractor therefor.” B works for three months and makes monthly requests for payment of a total of $60,000 from A. When A does not pay B because the owner has not paid A for the plumbing work, B stops work and a month later notifies A that he cancels the contract. If the court determines, in the light of the quoted language and other circumstances, that B assumed the risk that he would have to perform even if A did not pay him on the ground that the owner did not pay A, A's justifiable non-payment on that ground does not operate as a failure to perform under § 237 and therefore B's cancellation is a breach. Compare Illustration 1 to § 227 and Illustration 2 to § 237.
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3. The facts being otherwise as stated in Illustration 2, A unjustifiably refuses to pay B, although the owner has paid A for the plumbing work. Although B assumed the risk that he would have to perform even if A did not pay on the ground that the owner did not pay A, A's non-payment is not justified on that ground and therefore operates as a failure to perform under § 237. If a court concludes that the failure is material and that B's cancellation came when it was too late for A to cure it, B's cancellation is not a breach. Compare Illustration 1 to § 227 and Illustration 2 to § 237.
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11.2.5 Restatement (Second) of Contracts §240 11.2.5 Restatement (Second) of Contracts §240
§ 240 Part Performances as Agreed Equivalents
If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party's performance of his part of such a pair has the same effect on the other's duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.
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Illustrations:
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1. A contracts to sell and B to buy a quantity of dressed hogs and a quantity of live hogs at stated prices for each quantity. A is to deliver the dressed hogs first and the live hogs 15 days later, and B is to pay for each delivery within 30 days after it is made. A delivers the dressed hogs, but unjustifiably refuses to deliver the live ones. If a court finds that delivery of the dressed hogs and payment of the price stated for them are agreed equivalents, A can recover the stated price for the dressed hogs under the contract. B then has a claim against A for damages for his failure to deliver the live hogs.
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2. The facts being otherwise as stated in Illustration 1, A has no right to payment for either the dressed or the live hogs until 30 days after delivery of the live ones, but A unjustifiably refuses to deliver the live hogs until B pays for the dressed ones. If a court finds that delivery of the dressed hogs and the price stated for them are agreed equivalents, A can recover the stated price for the dressed hogs under the contract. See § 227(1). B then has a claim against A for damages for his failure to deliver the live hogs.
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3. The facts being otherwise as stated in Illustration 1, before A delivers the dressed hogs, he repudiates the contract by stating that he will not deliver the live ones. B then refuses to accept the dressed hogs. Even if a court finds that delivery of the dressed hogs and payment of the price stated for them are agreed equivalents, A has no claim against B. B has a claim against A for damages for total breach of contract (§ 253).
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Illustrations:
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4. A contracts with B to work for one year as a real estate salesman and to devote his full time to this work. A is to receive half of the real estate commission on all sales that he effects. A devotes full time to this work for ten months, but unjustifiably devotes only part time for the last two months. A court may apportion the unpaid commissions earned by A into those earned during the first ten months and those earned under the last two months according to the formula stated in the contract and, if it finds that working full time for ten months and the commissions on the sales over those months are agreed equivalents, A can recover the unpaid commissions for those months under the contract. B then has a claim against A for damages for his failure to devote full time during the last two months.
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5. A contracts with B to furnish the rights to 23 motion pictures to be selected by B from a much larger list over a period of five years. The contract states a total price of $23,000, but does not break it down into $1,000 for each picture. A furnishes B with the rights to only 14 pictures, which B shows, and then A unjustifiably refuses to furnish the rights to 9 others. A court may apportion the price as $1,000 for each picture and, if it finds that the furnishing of rights to 14 pictures and the payment of $14,000 are agreed equivalents, A can recover that amount under the contract. B has a claim for damages against A for his failure to furnish the rights to the 9 other pictures.
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Illustrations:
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6. A contracts with B to do specified work on B's subdivision. A is to do the excavation and grading of lots and streets for a lump sum price of $75,000, payable on completion of that part of the work. A is then to make street improvements, including the installation of curbs and gutters, for stated unit prices, payable on completion of that part of the work. A is to provide separate performance bonds for each part. A does the excavation and grading of lots and streets but then unjustifiably refuses to make street improvements. B refuses to pay A for excavation and grading, although he can easily have the street improvements made by another contractor. The excavation and grading of lots and streets and the payment of $75,000 are agreed equivalents. A has a claim against B for $75,000 under the contract for the excavation and grading. B has a claim for damages against A for his unjustified failure to make street improvements.
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7. A contracts to build a house for B for $50,000, progress payments to be made monthly in an amount equal to 85% of the price of the work performed during the preceding month, the balance to be paid on the architect's certificate of satisfactory completion of the house. A unjustifiably stops work at the end of a month before the work is substantially completed and sues for the progress payment for that month. The performance during that month and the corresponding progress payment are not agreed equivalents. A can recover nothing under the contract for that performance. B has a claim against A for damages for breach. Whether A has a claim against B in restitution is determined under the rules stated in §§ 370- 77.
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8. A contracts with B to drive 10,000 logs from various points down a river to B's boom at one cent per log mile. Because of a flood, A drives only 5,763 logs an average distance of 100 miles each to B's boom, and leaves the other 4,237 logs on the banks part of the way to B's boom. B expects to resell the logs and can resell the 5,763 at the same unit price as the entire 10,000. The driving of the logs to B's boom and the corresponding price at the contract rate are agreed equivalents, but the driving of logs part way and the corresponding price at the contract rate are not. A can recover $5,763 under the contract for the 5,763 logs that he has driven to B's boom, but can recover nothing for the remaining 4,237 logs that he has driven only part of the way. If A's failure to drive the remaining logs to B's boom is unjustified, it is a breach, and B has a claim against A for damages. Whether A's failure is justified on the ground of impracticability of performance is determined under the rules stated in §§ 261 and 263.
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9. The United States contracts with A under an “Industrial Preparedness Contract” for the production in volume of an electronic device. The work is to be done in three steps. Step I requires A to draw up plans and make a pilot run. Step II requires A to acquire equipment for production. Step III, to be taken only in case of national emergency and after receipt of an order from the United States, requires volume production and delivery in accordance with a stated schedule. A is required to maintain a state of readiness for this step over a six-year period. Specified payments are to be made on the completion of Steps I and II and against deliveries during Step III. A completes Steps I and II and, after having been paid $150,000, repudiates the contract when $50,000 is still unpaid on Step II. A sues for that unpaid balance of $50,000. The completion of Steps I and II and the payment of the amounts specified in the contract for those steps are not agreed equivalents. A has no claim against the United States for that performance. The United States has a claim against A for damages for breach.
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10. A contracts with B to construct and maintain ten signs advertising B's motel for $1,600 a year, $100 each for eight smaller signs and $400 each for two larger signs. The signs are of a special design not easily obtainable elsewhere. A constructs and maintains only seven of the smaller and one of the larger signs, unjustifiably failing to construct the other two. A's failure to construct the remaining two signs will not appreciably diminish the effect of the other eight. The construction and maintenance of the eight signs and the corresponding price at the contract rate are agreed equivalents. A can recover $1,100 a year under the contract for the signs that he constructs and maintains. B has a claim against A for damages for breach.
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11. The facts being otherwise as stated in Illustration 10, the signs are part of a series beginning “10 more miles to B's place,” so that the failure to construct the remaining two will appreciably diminish the effect of the other eight. The construction and maintenance of each sign and the corresponding price at the contract rate are not agreed equivalents. A can recover nothing under the contract for the signs that he constructs and maintains. B has a claim against A for damages for breach. Whether A has a claim against B in restitution is determined under the rules stated in §§ 370- 77.
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11.2.6 Restatement (Second) of Contracts §241 11.2.6 Restatement (Second) of Contracts §241
§ 241 Circumstances Significant in Determining Whether a Failure Is Material
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In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
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(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
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(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
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(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
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(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
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(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
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Illustrations:
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1. A, a subcontractor, contracts to do excavation and earth moving on a housing subdivision project for B, the owner and general contractor, and to do all work “in a workmanlike manner.” B is to make monthly progress payments for the work performed during the preceding month less a retainer of ten percent. A negligently damages a building with his bulldozer causing serious damage and denies any liability for B's loss. When B refuses to make further progress payments until A repairs the damage or admits liability, A notifies B that he cancels the contract. If the court determines that A's breach is material, A has no claim against B. B has a claim against A for damages for breach of contract.
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2. The facts being otherwise as stated in Illustration 6 to § 240, A completes the part concerned with the excavation and grading of lots and streets but fails in a minor respect to comply with the specifications. If a court determines that the failure is not material, A has a claim against B for $75,000 under the contract for the excavation and grading. B has a claim for damages against A for his failure fully to perform as to excavation and grading and also for his unjustified refusal to make street improvements.
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Illustrations:
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3. A contracts to sell and B to buy 300 crates of Australian onions, shipment to be from Australia in March. A has 300 crates ready for shipment in March, but government requisitions prevent him from loading more than 240 crates on the only ship available in March. B refuses to accept or pay for the onions when they are tendered. Under the circumstances stated in Subsections (a) and (c), A's failure is material and A has no claim against B. If A's failure is unjustified, B has a claim against A for damages for partial breach because of the delay even if A cures his failure, and has a claim against A for damages for total breach if A does not cure his failure (§ 243).
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4. The facts being otherwise as stated in Illustration 2 to § 232, B can have the part of the street in front of his own lot paved for $500, but this will not give him the expected access to his lot because the rest of the street is not paved. Under the circumstances stated in Subsections (a), (b), and (c), the failure of performance is material and A has no claim against B. If A's failure is unjustified, B has a claim against A for damages for partial breach because of the delay even if A cures his failure, and has a claim against A for damages for total breach if A does not cure his failure (§ 243).
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Illustration:
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5. A contracts to sell and B to buy land for $25,000. B is to make a $5,000 down payment and pay the balance in four annual installments of $5,000 each. A is to proceed immediately to have abstracts of title prepared showing a marketable title and to deliver them prior to the time for payment of the first annual installment. Without explanation, A fails to have abstracts prepared for delivery prior to the time for payment of the first annual installment. B refuses to pay that installment. Under the circumstances stated in Subsections (a)-(d), the failure of performance is material and A has no claim against B. B has a claim against A for damages for partial breach based on the delay if A cures his failure and a claim for damages for total breach if he does not (§ 243).
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Illustrations:
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6. A contracts to build a house for B, using pipe of Reading manufacture. In return, B agrees to pay $75,000, with provision for progress payments. Without B's knowledge, a subcontractor mistakenly uses pipe of Cohoes manufacture which is identical in quality and is distinguishable only by the name of the manufacturer which is stamped on it. The substitution is not discovered until the house is completed, when replacement of the pipe will require destruction of substantial parts of the house. B refuses to pay the unpaid balance of $10,000. Under the circumstances stated in Subsections (a), (c), and (e), the failure of performance is not material and A has a claim against B for the unpaid balance of $10,000, subject to a claim by B against A for damages for A's breach of his duty to use Reading pipe. See Illustration 1 to § 229.
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7. A contracts to build a supermarket for B. In return B agrees to pay $250,000, with provision for progress payments. A completes performance except that, angered by a dispute over an unrelated transaction, he refuses to build a cover over a compressor. B can have the cover built by another builder for $300. B refuses to pay the unpaid balance of $40,000. In spite of the circumstances stated in Subsection (e), under the circumstances stated in Subsections (a), (b), and (c), the failure of performance is not material and A has a claim against B for the unpaid balance of $40,000, subject to a claim by B against A for damages for A's breach of his duty to build a cover over the compressor.
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11.2.7 Restatement (Second) of Contracts §242 11.2.7 Restatement (Second) of Contracts §242
§ 242 Circumstances Significant in Determining When Remaining Duties are Discharged
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(a) those stated in § 241;
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(b) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements;
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(c) the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party's remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important.
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Illustration:
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1. The facts being otherwise as stated in Illustration 1 to § 237, B tenders the progress payment after a two-day delay along with damages for the delay. A refuses to accept the payment and resume work and notifies B that he cancels the contract. B's tender cured his breach before A's remaining duties to render performance were discharged, and B has a claim against A for total breach of contract, subject to a claim by A against B for damages for partial breach because of the delay.
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Illustrations:
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2. A, a theater manager, contracts with B, an actress, for her performance for six months in a play that A is about to present. B becomes ill during the second month of the performance, and A immediately engages another actress to fill B's place during the remainder of the six months. B recovers at the end of ten days and offers to perform the remainder of the contract, but A refuses. Whether B's failure to render performance due to illness immediately discharges A's remaining duties of performance, instead of merely suspending them, depends on the circumstances stated in Subsection (b) and in § 241(b) and (d), and in particular on the possibility as it reasonably appears to A when B becomes ill of the illness being only temporary and of A's obtaining an adequate temporary substitute.
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3. A contracts to sell and B to buy 1,000 shares of stock traded on a national securities exchange, delivery and payment to be on February 1. B offers to pay the price on February 1, but A unjustifiably and without explanation fails to offer to deliver the stock until February 2. B then refuses to accept the stock or pay the price. Under the circumstances stated in Subsection (b) and in § 241(a) and (c), the period of time has passed after which B's remaining duties to render performance are discharged because of A's material breach and A therefore has no claim against B. B has a claim against A for breach.
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4. A contracts to sell and B to buy land, the transfer to be on February 1. B tenders the price on February 1, but A does not tender a deed until February 2. B then refuses to accept the deed or pay the price. Under the circumstances stated in Subsections (b) and (c) and in § 241(a), in the absence of special circumstances, the period of time has not passed after which B's remaining duties to render performance are discharged. Although A's breach is material, it has been cured. A has a claim against B for damages for total breach of contract, subject to a claim by B against A for damages for partial breach because of the delay.
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5. A agrees to sell and B to buy land, the transfer to be on February 1. A tenders a sufficient deed on February 1, but B explains that although he wants to carry out the contract he would like to have a few weeks more to raise the amount of the price. A replies that unless B tenders the price immediately he will not deliver the deed. On February 15, B sues for specific performance, offering in his pleading to pay the agreed price with interest to compensate A for the delay. In the circumstances stated in Subsection (b) and in § 241(a), (b), and (d), the period of time has not passed after which A's remaining duties to render performance are discharged. Although B's breach is material, the court may decree specific performance subject to B's tender of the price and payment by B of damages for partial breach to compensate A for the delay.
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6. A contracts to sell and B to buy 5,000 tons of iron at a stated price, delivery to be in five monthly installments of 1,000 tons each on the first of each month and payment for each installment to be made on the tenth of that month. A makes the first three deliveries on the first of the month but, although the market price for iron is falling, he delays twelve days in making the fourth delivery, explaining to B that temporary labor troubles have caused the delay. B notifies A that he refuses to take or pay for the fourth delivery and that he cancels the contract. Whether the period of time has passed after which B's remaining duties to render performance are discharged, so that B's notification is not a repudiation, depends on the circumstances stated in Subsection (b) and in § 241(a), (b), (d), and (e). See Uniform Commercial Code § 2-612.
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7. A contracts to sell and B to buy 5,000 tons of iron at a stated price, delivery to be in five monthly installments of 1,000 tons each on the first of each month and payment for each installment to be made on the tenth of that month. A makes the first four deliveries on the first of the month, and B makes the first three payments by the tenth but does not make the fourth payment. The market price for iron is falling and B gives no assurances or explanation for the delay. On the twentieth of the month A notifies B that he will make no further deliveries and that he cancels the contract. Whether the period of time has passed after which A's remaining duties to render performance are discharged, so that A's notification is not a repudiation, depends on the circumstances stated in Subsection (b) and in § 241(a), (b), (d), and (e). See Uniform Commercial Code § 2-612.
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Illustrations:
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8. A contracts to charter a vessel belonging to B and to pay stipulated freight “on condition that the vessel arrive in New York ready for loading by March 1.” B promises that the vessel will arrive by that date and carry A's cargo. B unjustifiably fails to have the vessel in New York to be loaded until March 2. A refuses to load the vessel. Whether or not the period of time has passed after which B's uncured material failure would discharge A's remaining duties to render performance, A's duties are discharged under § 225(2) by the non-occurrence of an event that is made a condition by the agreement of the parties. B has no claim against A. A has a claim against B for damages for total breach.
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9. The facts being otherwise as stated in Illustration 4, the parties use a printed form contract that provides that “time is of the essence.” Absent other circumstances indicating that performance by February 1 is of genuine importance, A has a claim against B for damages for total breach of contract.
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10. The facts being otherwise as stated in Illustration 4, the contract provides that A's rights are “conditional on his tendering a deed on or before February 1.” A has no claim against B. But cf. Illustration 4 to § 229.
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11.2.8 Restatement (Second) of Contracts §243 11.2.8 Restatement (Second) of Contracts §243
§ 243 Effect of a Breach by Non-Performance as Giving Rise to a Claim for Damages for Total Breach
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(1) With respect to performances to be exchanged under an exchange of promises, a breach by non-performance gives rise to a claim for damages for total breach only if it discharges the injured party's remaining duties to render such performance, other than a duty to render an agreed equivalent under § 240.
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(2) Except as stated in Subsection (3), a breach by non-performance accompanied or followed by a repudiation gives rise to a claim for damages for total breach.
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(3) Where at the time of the breach the only remaining duties of performance are those of the party in breach and are for the payment of money in installments not related to one another, his breach by non-performance as to less than the whole, whether or not accompanied or followed by a repudiation, does not give rise to a claim for damages for total breach.
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(4) In any case other than those stated in the preceding subsections, a breach by non-performance gives rise to a claim for total breach only if it so substantially impairs the value of the contract to the injured party at the time of the breach that it is just in the circumstances to allow him to recover damages based on all his remaining rights to performance.
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Illustrations:
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1. A promises to sell to B a lot in a subdivision for $8,000. B promises to pay in four installments of $2,000 each, beginning one year after execution of the contract. A promises to begin to make improvements and pave the streets within 60 days and to complete work within a reasonable time and promises to deliver a deed at the time of the final payment. A commits a material breach by unjustifiably failing to pave the streets, and B thereupon refuses to pay any installments. After a reasonable time for A to cure his material breach has passed (§ 242), B's duty to pay the price is discharged, and he has a claim against A for damages for total breach.
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2. The facts being otherwise as stated in Illustration 1, B pays the first installment although he knows of A's material breach. B's payment operates as a promise to pay the remaining installments in spite of the non-occurrence of a condition of his duty to do so. See § 237; Illustration 5 to § 84. B's duty to pay the price is not discharged, and he has a claim against A merely for damages for partial breach because of the delay.
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Illustration:
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3. A contracts to sell and B to buy for $8,000 a subdivision lot on which B plans to build a house for himself. Delivery of the deed and payment of the price are to be made within 30 days, and A promises to make improvements and pave the streets within one year. A delivers the deed and B pays the price within 30 days. A paves the streets and makes most but not all of the improvements within one year, but then repudiates by unjustifiably telling B that he refuses to make the rest of the improvements. B has a claim against A for damages for total breach, even though absent a repudiation B's claim might be merely one for damages for partial breach. See Illustration 8. If A and B then agree that A will make the rest of the improvements, B has a claim against A merely for damages for partial breach because of the delay.
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Illustrations:
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4. A borrows $10,000 from B and promises to repay with interest in ten monthly installments. A unjustifiably fails to pay the first four installments. B has a claim against A merely for damages for partial breach for non-payment of the four unpaid installments. The result is the same even if A repudiates by telling B that he will not make the payments.
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5. A, an insurer, issues a policy of disability insurance to B under which monthly payments are to be made to B and the payment of additional premiums waived if B is totally and permanently disabled. B suffers total and permanent disability. A makes monthly payments for a year and then unjustifiably fails to make further payments. After A has been in default for a year, B sues A. B has a claim against A merely for damages for partial breach for non-payment during the second year. The result is the same even if A repudiates by telling B that he will not make the payments.
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Illustrations:
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6. For a fee of $25,000, paid in advance, A contracts with B, an impresario, to sing in five concerts offered to the public as a series. A unjustifiably fails to sing in the first two concerts. A's breach so substantially impairs the value of the contract to B that B has a claim against A for damages for total breach.
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7. The facts being otherwise as stated in Illustration 3, A does not repudiate but, in spite of repeated requests from B, does not make improvements or pave streets for two years. A's breach so substantially impairs the value of the contract to B that B has a claim against A for damages for total breach.
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8. The facts being otherwise as stated in Illustration 3, A does not repudiate and gives B reasonable assurances that the remaining improvements will be completed with a delay of no more than one month. B has a claim against A merely for damages for partial breach because of the delay.
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11.2.9 UCC § 2-507 11.2.9 UCC § 2-507
U.C.C. § 2-507. Effect of Seller's Tender; Delivery on Condition
11.2.10 UCC 2-511 11.2.10 UCC 2-511
§ 2-511. Tender of Payment by Buyer; Payment by Check.
11.2.11 Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921) 11.2.11 Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921)
129 N.E. 889
JACOB & YOUNGS, Inc.,
v.
KENT.
Action by Jacob & Youngs, Incorporated, against George E. Kent. From an order of the Appellate Division (187 App. Div. 100,175 N. Y. Supp. 281), reversing judgment for defendant entered on verdict directed by the court and granting new trial, defendant appeals.
Order affirmed and judgment absolute directed in favor of plaintiff.
McLaughlin, Pound, and Andrews, JJ., dissenting. [890]
[230 N.Y. 239]Appeal from Supreme Court, Appellate Division, First department.
[230 N.Y. 240]Henry W. Hardon, of New York City, for appellant.
Frederick Hulse and Cornelius J. Sullivan, Jr., both of New York City, for respondent.
CARDOZO, J.
The plaintiff built a country residence for the defendant at a cost of upwards of $77,000, and now sues to recover a balance of $3,483.46, remaining unpaid. The work of construction ceased in June, 1914, and the defendant then began to occupy the dwelling. There was no complaint of defective performance until March, 1915. One of the specifications for the plumbing work provides that--
‘All wrought-iron pipe must be well galvanized, lap welded pipe of the grade known as ‘standard pipe’ of Reading manufacture.'
The defendant learned in March, 1915, that some of the pipe, instead of being made in Reading, was the product of other factories. The plaintiff was accordingly directed by the architect to do the work anew. The plumbing was then encased within the walls except in a few places where it had to be exposed. Obedience to the order meant more than the substitution of other pipe. It meant the demolition at great expense of substantial parts of [230 N.Y. 241]the completed structure. The plaintiff left the work untouched, and asked for a certificate that the final payment was due. Refusal of the certificate was followed by this suit.
The evidence sustains a finding that the omission of the prescribed brand of pipe was neither fraudulent nor willful. It was the result of the oversight and inattention of the plaintiff's subcontractor. Reading pipe is distinguished from Cohoes pipe and other brands only by the name of the manufacturer stamped upon it at intervals of between six and seven feet. Even the defendant's architect, though he inspected the pipe upon arrival, failed to notice the discrepancy. The plaintiff tried to show that the brands installed, though made by other manufacturers, were the same in quality, in appearance, in market value, and in cost as the brand stated in the contract-that they were, indeed, the same thing, though manufactured in another place. The evidence was excluded, and a verdict directed for the defendant. The Appellate Division reversed, and granted a new trial.
[1] We think the evidence, if admitted, would have supplied some basis for the inference that the defect was insignificant in its relation to the project. The courts never say that one who makes a contract fills the measure of his duty by less than full performance. They do say, however, that an omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture. Spence v. Ham, 163 N. Y. 220, 57 N. E. 412,51 L. R. A. 238; Woodward v. Fuller, 80 N. Y. 312; Glacius v. Black, 67 N. Y. 563, 566;Bowen v. Kimbell, 203 Mass. 364, 370, 89 N. E. 542,133 Am. St. Rep. 302. The distinction is akin to that between dependent and independent promises, or between promises and conditions. Anson on Contracts (Corbin's Ed.) § 367; 2 Williston on Contracts, § 842. Some promises are so plainly independent that they can never [230 N.Y. 242]by fair construction be conditions of one another. Rosenthal Paper Co. v. Nat. Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766;Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328, 4 N. E. 522. Others are so plainly dependent that they must always be conditions. Others, though dependent and thus conditions when there is departure in point of substance, will be viewed as independent and collateral when the departure is insignificant. 2 Williston on Contracts, §§ 841, 842; Eastern Forge Co. v. Corbin, 182 Mass. 590, 592, 66 N. E. 419; Robinson v. Mollett, L. R., 7 Eng. & Ir. App. 802, 814; Miller v. Benjamin, 142 N. Y. 613, 37 N. E. 631. Considerations partly of justice and partly of presumable intention are to tell us whether this or that promise shall be placed in one class or in another. The simple and the uniform will call for different remedies from the multifarious and the intricate. The margin of departure within the range of normal expectation upon a sale of common chattels will vary from the margin to be expected upon a contract for the construction of a mansion or a ‘skyscraper.’ There will be harshness sometimes and oppression in the implication of a condition when the thing upon which labor has been expended is incapable of surrender because united to the land, and equity and reason in the implication of a like condition when the subject-matter, if defective, is in shape to be returned. From the conclusion that promises may not be treated as dependent to the extent of their uttermost minutiae without a sacrifice of justice, the progress is a short one to the conclusion that they may not be so treated without a perversion of intention. Intention not otherwise revealed may be presumed to hold in contemplation the reasonable and probable. If something else is in view, it must not be left to implication. There will be no assumption of a purpose to visit venial faults with oppressive retribution.
Those who think more of symmetry and logic in the development of legal rules than of practical adaptation to the attainment of a just result will be troubled by a classification[230 N.Y. 243]where the lines of division are so wavering and blurred. Something, doubtless, may be said on the score of consistency and certainty in favor of a stricter standard. The courts have balanced such considerations against those of equity and fairness, and found the latter to be the weightier. The decisions in this state commit us to the liberal view, which is making its way, nowadays, in jurisdictions slow to welcome it. Dakin & Co. v. Lee, 1916, 1 K. B. 566, 579. Where the line is to be drawn between the important and the trivial cannot be settled by a formula. ‘In the nature of the case precise boundaries are impossible.’ 2 Williston on Contracts, § 841. The same omission may take on one aspect or another according to its setting. Substitution of equivalents may not have the same significance in fields of art on the one side and in those of mere utility on the other. Nowhere will change be tolerated, however, if it is so dominant or pervasive as in any real or substantial measure to frustrate the purpose of the contract. Crouch v. Gutmann, 134 N. Y. 45, 51,31 N. E. 271,30 Am. St. Rep. 608. There is no general license to install whatever, in the builder's judgment, may be regarded as ‘just as good.’ Easthampton L. & C. Co., Ltd., v. Worthington, 186 N. Y. 407, 412,79 N. E. 323. The question is one of degree, to be answered, if there is doubt, by the triers of the facts (Crouch v. Gutmann; Woodward v. Fuller, supra), and, if the inferences are certain, by the judges of the law (Easthampton L. & C. Co., Ltd., v. Worthington, supra). We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence. Then only can we tell whether literal fulfillment is to be implied by law as a condition. This is not to say that the parties are not free by apt and certain words to effectuate a purpose that performance of every term shall be a condition of recovery. That question is not here. This is merely to say that the law will be slow to impute the purpose, in the silence of the parties, where the significance [230 N.Y. 244]of the default is grievously out of proportion to the oppression of the forfeiture. The willful transgressor must accept the penalty of his transgression. Schultze v. Goodstein, 180 N. Y. 248, 251,73 N. E. 21;Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N. Y. 486, 490,56 N. E. 995. For him there is no occasion to mitigate the rigor of implied conditions. The transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong. Spence v. Ham, supra.
[2] In the circumstances of this case, we think the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing. Some of the exposed sections might perhaps have been replaced at moderate expense. The defendant did not limit his demand to them, but treated the plumbing as a unit to be corrected from cellar to roof. In point of fact, the plaintiff never reached the stage at which evidence of the extent of the allowance became necessary. The trial court had excluded evidence that the defect was unsubstantial, and in view of that ruling there was no occasion for the plaintiff to go farther with an offer of proof. We think, however, that the offer, if it had been made, would not of necessity have been defective because directed to difference in value. It is true that in most cases the cost of replacement is the measure. Spence v. Ham, supra. The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value. Specifications call, let us say, for a foundation built of granite quarried in Vermont. On the completion of the building, the owner learns that through the blunder of a subcontractor part of the foundation has been built of granite of the same quality quarried in New Hampshire. The measure of allowance is not the cost of reconstruction. ‘There may be [230 N.Y. 245]omissions of that which could not afterwards be supplied exactly as called for by the contract without taking down the building to its foundations, and at the same time the omission may not affect the value of the building for use or otherwise, except so slightly as to be hardly appreciable.’ Handy v. Bliss, 204 Mass. 513, 519, 90 N. E. 864,134 Am. St. Rep. 673. Cf. Foeller v. Heintz, 137 Wis. 169, 178, 118 N. W. 543,24 L. R. A. (N. S.) 321; [892] Oberlies v. Bullinger, 132 N. Y. 598, 601,30 N. E. 999; 2 Williston on Contracts, § 805, p. 1541. The rule that gives a remedy in cases of substantial performance with compensation for defects of trivial or inappreciable importance has been developed by the courts as an instrument of justice. The measure of the allowance must be shaped to the same end.
The order should be affirmed, and judgment absolute directed in favor of the plaintiff upon the stipulation, with costs in all courts.
McLAUGHLIN, J.
I dissent. The plaintiff did not perform its contract. Its failure to do so was either intentional or due to gross neglect which, under the uncontradicted facts, amounted to the same thing, nor did it make any proof of the cost of compliance, where compliance was possible.
Under its contract it obligated itself to use in the plumbing only pipe (between 2,000 and 2,500 feet) made by the Reading Manufacturing Company. The first pipe delivered was about 1,000 feet and the plaintiff's superintendent then called the attention of the foreman of the subcontractor, who was doing the plumbing, to the fact that the specifications annexed to the contract required all pipe used in the plumbing to be of the Reading Manufacturing Company. They then examined it for the purpose of ascertaining whether this delivery was of that manufacture and found it was. Thereafter, as pipe was required in the progress of the work, the foreman of the subcontractor would leave word at its [230 N.Y. 246]shop that he wanted a specified number of feet of pipe, without in any way indicating of what manufacture. Pipe would thereafter be delivered and installed in the building, without any examination whatever. Indeed, no examination, so far as appears, was made by the plaintiff, the subcontractor, defendant's architect, or any one else, of any of the pipe except the first delivery, until after the building had been completed. Plaintiff's architect then refused to give the certificate of completion, upon which the final payment depended, because all of the pipe used in the plumbing was not of the kind called for by the contract. After such refusal, the subcontractor removed the covering or insulation from about 900 feet of pipe which was exposed in the basement, cellar, and attic, and all but 70 feet was found to have been manufactured, not by the Reading Company, but by other manufacturers, some by the Cohoes Rolling Mill Company, some by the National Steel Works, some by the South Chester Tubing Company, and some which bore no manufacturer's mark at all. The balance of the pipe had been so installed in the building that an inspection of it could not be had without demolishing, in part at least, the building itself.
I am of the opinion the trial court was right in directing a verdict for the defendant. The plaintiff agreed that all the pipe used should be of the Reading Manufacturing Company. Only about two-fifths of it, so far as appears, was of that kind. If more were used, then the burden of proving that fact was upon the plaintiff, which it could easily have done, since it knew where the pipe was obtained. The question of substantial performance of a contract of the character of the one under consideration depends in no small degree upon the good faith of the contractor. If the plaintiff had intended to, and had, complied with the terms of the contract except as to minor omissions, due to inadvertence, then he might be allowed to recover the contract price, less the amount [230 N.Y. 247]necessary to fully compensate the defendant for damages caused by such omissions. Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 88 N. Y. 648. But that is not this case. It installed between 2,000 and 2,500 feet of pipe, of which only 1,000 feet at most complied with the contract. No explanation was given why pipe called for by the contract was not used, nor that any effort made to show what it would cost to remove the pipe of other manufacturers and install that of the Reading Manufacturing Company. The defendant had a right to contract for what he wanted. He had a right before making payment to get what the contract called for. It is no answer to this suggestion to say that the pipe put in was just as good as that made by the Reading Manufacturing Company, or that the difference in value between such pipe and the pipe made by the Reading Manufacturing Company would be either ‘nominal or nothing.’ Defendant contracted for pipe made by the Reading Manufacturing Company. What his reason was for requiring this kind of pipe is of no importance. He wanted that and was entitled to it. It may have been a mere whim on his part, but even so, he had a right to this kind of pipe, regardless of whether some other kind, according to the opinion of the contractor or experts, would have been ‘just as good, better, or done just as well.’ He agreed to pay only upon condition that the pipe installed were made by that company and he ought not to be compelled to pay unless that condition be performed. Schultze v. Goodstein, 180 N. Y. 248, 73 N. E. 21; Spence v. Ham, supra; Steel S. & E. C. Co. v. Stock, 225 N. Y. 173, 121 N. E. 786;Van Clief v. Van Vechten, 130 N. Y. 571, 29 N. E. 1017;Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449;Smith v. Brady, 17 N. Y. 173, and authorities cited on [893] page 185, 72 Am. Dec. 442. The rule, therefore, of substantial performance, with damages for unsubstantial omissions, has no application. Crouch v. Gutmann, 134 N. Y. 45, 31 N. E. 271,30 Am. St. Rep. 608;Spence v. Ham, 163 N. Y. 220, 57 N. E. 412,51 L. R. A. 238.
[230 N.Y. 248]What was said by this court in Smith v. Brady, supra, is quite applicable here:
‘I suppose it will be conceded that every one has a right to build his house, his cottage or his store after such a model and in such style as shall best accord with his notions of utility or be most agreeable to his fancy. The specifications of the contract become the law between the parties until voluntarily changed. If the owner prefers a plain and simple Doric column, and has so provided in the agreement, the contractor has no right to put in its place the more costly and elegant Corinthian. If the owner, having regard to strength and durability, has contracted for walls of specified materials to be laid in a particular manner, or for a given number of joists and beams, the builder has no right to substitute his own judgment or that of others. Having departed from the agreement, if performance has not been waived by the other party, the law will not allow him to allege that he has made as good a building as the one he engaged to erect. He can demand payment only upon and according to the terms of his contract, and if the conditions on which payment is due have not been performed, then the right to demand it does not exist. To hold a different doctrine would be simply to make another contract, and would be giving to parties an encouragement to violate their engagements, which the just policy of the law does not permit.’ (17 N. Y. 186, 72 Am. Dec. 422).
I am of the opinion the trial court did not err in ruling on the admission of evidence or in directing a verdict for the defendant.
For the foregoing reasons I think the judgment of the Appellate Division should be reversed and the judgment of the Trial Term affirmed.
HISCOCK, C. J., and HOGAN and CRANE, JJ., concur with CARDOZO, J.
POUND and ANDREWS, JJ., concur with McLAUGHLIN, J.
Order affirmed, etc.
11.2.12. Promises Promises: Jacob & Youngs vs. Kent
11.2.13 UCC Sections on Substantial Performance and Imperfect Tender (2-601 / 2-607) 11.2.13 UCC Sections on Substantial Performance and Imperfect Tender (2-601 / 2-607)
UCC Sections on Substantial Performance and Imperfect Tender
- 2-601. Buyer's Rights on Improper Delivery.
Subject to the provisions of this Article on breach in installment contracts (Section 2-612) and unless otherwise agreed under the sections on contractual limitations of remedy (Sections 2-718 and 2-719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
(a) reject the whole; or
(b) accept the whole; or
(c) accept any commercial unit or units and reject the rest.
- 2-607. Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over.
(1) The buyer must pay at the contract rate for any goods accepted.
(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the non-conformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this Article for non-conformity.
(3) Where a tender has been accepted
(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and
(b) if the claim is one for infringement or the like (subsection (3) of Section 2-312) and the buyer is sued as a result of such a breach he must so notify the seller within a reasonable time after he receives notice of the litigation or be barred from any remedy over for liability established by the litigation.
(4) The burden is on the buyer to establish any breach with respect to the goods accepted.
(5) Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over
(a) he may give his seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do so he will be bound in any action against him by his buyer by any determination of fact common to the two litigations, then unless the seller after seasonable receipt of the notice does come in and defend he is so bound.
(b) if the claim is one for infringement or the like (subsection (3) of Section 2-312) the original seller may demand in writing that his buyer turn over to him control of the litigation including settlement or else be barred from any remedy over and if he also agrees to bear all expense and to satisfy any adverse judgment, then unless the buyer after seasonable receipt of the demand does turn over control the buyer is so barred.
(6) The provisions of subsections (3), (4) and (5) apply to any obligation of a buyer to hold the seller harmlesss against infringement or the like (subsection (3) of Section 2-312).
11.3 anticipatory breach 11.3 anticipatory breach
11.3.1 Truman L. Flatt & Sons Co. v. Schupf 11.3.1 Truman L. Flatt & Sons Co. v. Schupf
TRUMAN L. FLATT AND SONS COMPANY, INC., Plaintiff-Appellant, v. SARA LEE SCHUPF et al., Defendants-Appellees.
Fourth District
No. 4—94—0713
Argued March 6, 1995.
Opinion filed April 27,1995.
Rehearing denied May 30, 1995.
Gerri Papushkewych (argued), of Wolfson, Papushkewych & Rutherford, and Kevin J. McFadden, of Peterson & Ross, both of Springfield, for appellant.
Paul E. Presney (argued), of Presney, Kelly & Presney, of Springfield, for appellees.
delivered the opinion of the court:
Plaintiff Truman L. Flatt & Sons Co., Inc., filed a complaint seeking specific performance of a real estate contract made with defendants Sara Lee Schupf, Ray H. Neiswander, Jr., and American National Bank and Trust Company of Chicago (American), as trustee *984under trust No. 23257. Defendants filed a motion for summary judgment, which the trial court granted. Plaintiff now appeals from the trial court’s grant of the motion for summary judgment. We reverse and remand.
In March 1993, plaintiff and defendants entered a contract in which defendants agreed to sell plaintiff a parcel of land located in Springfield, Illinois. The contract stated the purchase price was to be $160,000. The contract also contained the following provisions:
"1. This transaction shall be closed on or before June 30, 1993, or upon approval of the relief requested from the Zoning Code of the City of Springfield, Illinois, whichever first occurs ('Closing Date’). The closing is subject to contingency set forth in paragraph 14.
14. This Contract to Purchase Real Estate is contingent upon the Buyer obtaining, within one hundred twenty (120) days after the date hereof, amendment of, or other sufficient relief of, the Zoning Code of the City of Springfield to permit the construction and operation of an asphalt plant. In the event the City Council of the City of Springfield denies the request for such use of the property, then this contract shall be voidable at Buyer’s option and if Buyer elects to void this contract Buyer shall receive a refund of the earnest money paid.”
On May 21, plaintiff’s attorney sent a letter to defendants’ attorney informing him of substantial public opposition plaintiff encountered at a public meeting concerning its request for rezoning. The letter concluded:
"The day after the meeting all of the same representatives of the buyer assembled and discussed our chances for successfully pursuing the re-zoning request. Everyone who was there was in agreement that our chances were zero to none for success. As a result, we decided to withdraw the request for re-zoning, rather than face almost certain defeat.
The bottom line is that we are still interested in the property, but the property is not worth as much to us [as] a 35-acre parcel zoned 1-1, as it would be if it were zoned 1-2. At this juncture, I think it is virtually impossible for anyone to get that property rezoned 1-2, especially to accommodate the operation of an asphalt plant. In an effort to keep this thing moving, my clients have authorized me to offer your clients the sum of $142,500.00 for the property, which they believe fairly represents its value with its present zoning classification. Please check with your clients and advise whether or not that revision in the contract is acceptable. If it is, I believe we can accelerate the closing and bring this mat*985ter to a speedy conclusion. Your prompt attention will be appreciated. Thanks.”
Defendants’ attorney responded in a letter dated June 9, the body of which stated, in its entirety:
"In reply to your May 21 letter, be advised that the owners of the property in question are not interested in selling the property for $142,500 and, accordingly, the offer is not accepted.
I regret that the zoning reclassification was not approved.” Plaintiff’s attorney replied back in a letter dated June 14, the body of which stated, in its entirety:
"My clients received your letter of June 9, 1993[,] with some regret, however upon some consideration they have elected to proceed with the purchase of the property as provided in the contract. At your convenience please give me a call so that we can set up a closing date.”
After this correspondence, plaintiff’s attorney sent two more brief letters to defendants’ attorney, dated June 23 and July 6, each requesting information concerning the status of defendants’ preparation for fulfillment of the contract. Defendants’ attorney replied in a letter dated July 8. The letter declared it was the defendants’ position plaintiff’s failure to waive the rezoning requirement and elect to proceed under the contract at the time the rezoning was denied, coupled with the new offer to buy the property at less than the contract price, effectively voided the contract. Plaintiff apparently sent one more letter in an attempt to convince defendants to honor the contract, but defendants declined. Defendants then arranged to have plaintiff’s earnest money returned.
Plaintiff filed a complaint for specific performance and other relief against defendants and American, asking the court to direct defendants to comply with the terms of the contract. Defendants responded by filing a "motion to strike, motion to dismiss or, in the alternative, motion for summary judgment.” The motion for summary judgment sought summary judgment on the basis plaintiff repudiated the contract.
Prior to the hearing on the motions, plaintiff filed interrogatories requesting, among other things, information concerning the current status of the property. Defendants’ answers to the interrogatories stated defendants had no knowledge of any third party’s involvement in a potential sale of the property, defendants had not made any offer to sell the property to anyone, no one had made an offer to purchase the property or discussed the possibility of purchasing the property, and defendants had not sold the property to, received any offer from, or discussed a sale of the property with, any other trust member.
*986After a hearing on the motions, the trial court granted the defendants’ motion for summary judgment without explaining the basis for its ruling. Plaintiff filed a post-trial motion to vacate the judgment. The trial court denied the post-trial motion, declaring defendants’ motion for summary judgment was granted because plaintiff had repudiated the contract. Plaintiff now appeals the trial court’s grant of summary judgment, arguing the trial court erred because (1) it did not repudiate the contract, and (2) even if it did repudiate the contract, it timely retracted that repudiation.
Plaintiff contends the trial court erred in granting summary judgment. Summary judgment is proper when the resolution of a case hinges on a question of law and the moving party’s right to judgment is clear and free from doubt. In considering a motion for summary judgment, the court must consider the affidavits, depositions, admissions, exhibits, and pleadings on file and has a duty to construe the evidence strictly against the movant and liberally in favor of the nonmoving party. (In re Estate of Hoover (1993), 155 Ill. 2d 402, 410-11, 615 N.E.2d 736, 739-40.) The motion will be granted if the court finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2— 1005 (West 1992).) A triable issue of fact exists where there is a dispute as to material facts or where the material facts are undisputed but reasonable persons might draw different inferences from those facts. In a case involving summary judgment, a reviewing court reviews the evidence in the record de novo. (Hoover, 155 Ill. 2d at 411, 615 N.E.2d at 740.) Here, there are no facts in dispute. Thus, the question is whether the trial court erred in declaring defendant was entitled to judgment as a matter of law based on those facts.
Plaintiff first argues summary judgment was improper because the trial court erred in finding plaintiff had repudiated the contract.
"The doctrine of anticipatory repudiation requires a clear manifestation of an intent not to perform the contract on the date of performance. *** That intention must be a definite and unequivocal manifestation that he will not render the promised performance when the time fixed for it in the contract arrives. [Citation.] Doubtful and indefinite statements that performance may or may not take place are not enough to constitute anticipatory repudiation.” (In re Marriage of Olsen (1988), 124 Ill. 2d 19, 24, 528 N.E.2d 684, 686.)
These requirements exist because "[ajnticipatory breach is not a remedy to be taken lightly.” (Olsen, 124 Ill. 2d at 25, 528 N.E.2d at 687.) The Restatement (Second) of Contracts adopts the view of the Uniform Commercial Code (UCC) and states "language that under a *987fair reading 'amounts to a statement of intention not to perform except on conditions which go beyond the contract’ constitutes a repudiation. Comment 2 to Uniform Commercial Code § 2 — 610.” (Restatement (Second) of Contracts § 250, Comment b, at 273 (1981).) Whether an anticipatory repudiation occurred is a question of fact and the judgment of the trial court thereon will not be disturbed unless it is against the manifest weight of evidence. Leazzo v. Dunham (1981), 95 Ill. App. 3d 847, 850, 420 N.E.2d 851, 854.
As can be seen, whether a repudiation occurred is determined on a case-by-case basis, depending on the particular language used. Both plaintiff and defendants, although they cite Illinois cases discussing repudiation, admit the cited Illinois cases are all factually distinguishable from the case at hand because none of those cases involved a request to change a term in the contract. According to the commentators, a suggestion for modification of the contract does not amount to a repudiation. (J. Calamari & J. Perillo, Contracts § 12 — 4, at 524 n.74 (3d ed. 1987) (hereinafter Calamari), citing Unique Systems Inc. v. Zotos International, Inc. (8th Cir. 1980), 622 F.2d 373.) Plaintiff also cites cases in other jurisdictions holding a request for a change in the price term of a contract does not constitute a repudiation. (Wooten v. DeMean (Mo. Ct. App. 1990), 788 S.W.2d 522; Stolper Steel Products Corp. v. Behrens Manufacturing Co. (1960), 10 Wis. 2d 478, 103 N.W.2d 683.) Defendants attempt to distinguish these cases by arguing here, under the totality of the language in the letter and the circumstances surrounding the letter, the request by plaintiff for a decrease in price clearly implied a threat of nonperformance if the price term was not modified. We disagree.
The language in the May 21 letter did not constitute a clearly implied threat of nonperformance. First, although the language in the May 21 letter perhaps could be read as implying plaintiff would refuse to perform under the contract unless the price was modified, given the totality of the language in the letter, such an inference is weak. More important, even if such an inference were possible, Illinois law requires a repudiation be manifested clearly and unequivocally. Plaintiffs May 21 letter at most created an ambiguous implication whether performance would occur. Indeed, during oral argument defense counsel conceded the May 21 letter was "ambiguous” on whether a repudiation had occurred. This is insufficient to constitute a repudiation under well-settled Illinois law. Therefore, the trial court erred in declaring the May 21 letter anticipatorily repudiated the real estate contract as a matter of law.
Moreover, even if plaintiff had repudiated the contract, the trial court erred in granting summary judgment on this basis because *988plaintiff timely retracted its repudiation. Only one published decision has discussed and applied Illinois law regarding retraction of an anticipatory repudiation, Refrigeradora Del Noroeste, S.A. v. Appelbaum (1956), 138 F. Supp. 354 (holding the repudiating party has the power of retraction unless the injured party has brought suit or otherwise materially changed position), aff’d in part & rev’d in part on other grounds (1957), 248 F.2d 858. The Restatement (Second) of Contracts states:
"The effect of a statement as constituting a repudiation under § 250 or the basis for a repudiation under § 251 is nullified by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.” (Emphasis added.) (Restatement (Second) of Contracts § 256(1), at 293 (1981).)
The UCC adopts the same position:
"Retraction of Anticipatory Repudiation. (1) Until the repudiating party’s next performance is due he can retract his repudiation unless the aggrieved party has since the repudiation cancelled or materially changed his position or otherwise indicated that he considers the repudiation final.” (Emphasis added.) (810 ILCS 5/2 — 611(1) (West 1992).)
Professors Calamari and Perillo declare section 2 — 611 of the UCC:
"is in general accord with the common law rule that an anticipatory repudiation may be retracted until the other party has commenced an action thereon or has otherwise changed his position. The Code is explicit that no other act of reliance is necessary where the aggrieved party indicates 'that he considers the repudiation final.’ ” (Emphasis added.) (Calamari § 12.7, at 528.)
"The majority of the common law cases appear to be in accord with this position.” (Calamari § 12.7, at 528 n.93.) Other commentators are universally in accord. Professor Farnsworth states: "The repudiating party can prevent the injured party from treating the contract as terminated by retracting before the injured party has acted in response to it.” (Emphasis added.) (2 E. Farnsworth, Contracts § 8.22, at 482 (1990).) Professor Corbin declares one who has anticipatorily repudiated his contract has the power of retraction until the aggrieved party has materially changed his position in reliance on the repudiation. (4 A. Corbin, Corbin on Contracts § 980, at 930-31 (1951) (hereinafter Corbin).) Corbin goes on to say the assent of the aggrieved party is necessary for retraction only when the repudiation is no longer merely anticipatory, but has become an actual breach at the time performance is due. (4 Corbin § 980, at 935.) Williston states *989an anticipatory repudiation can be retracted by the repudiating party "unless the other party has, before the withdrawal, manifested an election to rescind the contract, or changed his position in reliance on the repudiation.” (Emphasis added.) 11 W. Jaeger, Williston on Contracts § 1335, at 180 (3d ed. 1968) (hereinafter Williston).
Defendants completely avoid discussion of the common-law right to retract a repudiation other than to say Illinois is silent on the issue. Defendants then cite Stonecipher v. Pillatsch (1975), 30 Ill. App. 3d 140, 332 N.E.2d 151, Builder’s Concrete Co. v. Fred Faubel & Sons, Inc. (1978), 58 Ill. App. 3d 100, 373 N.E.2d 863, and Leazzo v. Dunham (1981), 95 Ill. App. 3d 847, 420 N.E.2d 851, as well as Williston § 1337, at 185-86. These authorities stand for the proposition that after an anticipatory repudiation, the aggrieved party is entitled to choose to treat the contract as rescinded or terminated, to treat the anticipatory repudiation as a breach by bringing suit or otherwise changing its position, or to await the time for performance. The UCC adopts substantially the same position. (810 ILCS 5/2 — 610 (West 1992).) Defendants here assert they chose to treat the contract as rescinded, as they had a right to do under well-settled principles of law.
Plaintiff admits the law stated by defendants is well settled, and admits if the May 21 letter was an anticipatory breach, then defendants had the right to treat the contract as being terminated or rescinded. However, plaintiff points out defendants’ assertions ignore the great weight of authority, discussed earlier, which provides a right of the repudiating party to retract the repudiation before the aggrieved party has chosen one of its options allowed under the common law and listed in Stonecipher, Builder’s Concrete, and Leazzo. Plaintiff argues defendants’ letter of June 9 failed to treat the contract as rescinded, and absent notice or other manifestation defendants were pursuing one of their options, plaintiff was free to retract its repudiation. Plaintiff is correct.
Defendants’ precise theory that plaintiff should not be allowed to retract any repudiation in this instance is ambiguous and may be given two interpretations. The first is Illinois should not follow the common-law rule allowing retraction of an anticipatory repudiation before the aggrieved party elects a response to the repudiation. This theory warrants little discussion, because the rule is well settled. Further, defendants have offered no public policy reason to disallow retraction of repudiation other than the public interest in upholding the "sanctity of the contract.”
The second possible interpretation of defendants’ precise theory is an aggrieved party may treat the contract as terminated or rescinded without notice or other indication being given to the *990repudiating party, and once such a decision is made by the aggrieved party, the repudiating party no longer has the right of retraction. It is true no notice is required to be given to the repudiating party if the aggrieved party materially changes its position as a result of the repudiation. (See, e.g., Calamari § 12 — 7, at 528 n.92, citing Bu-Vi-Bar Petroleum Corp. v. Krow (10th Cir. 1930), 40 F.2d 488, 493.) Here, however, the defendants admitted in their answers to plaintiffs interrogatories they had not entered another agreement to sell the property, nor even discussed or considered the matter with another party. Defendants had not changed their position at all, nor do defendants make any attempt to so argue. As can be seen from the language of the Restatement, the UCC, and the commentators, shown earlier, they are in accord that where the aggrieved party has not otherwise undergone a material change in position, the aggrieved party must indicate to the other party it is electing to treat the contract as rescinded. This can be accomplished either by bringing suit, by notifying the repudiating party, or by in some other way manifesting an election to treat the contract as rescinded. Prior to such indication, the repudiating party is free to retract its repudiation. The Restatement (Second) of Contracts provides the following illustrations:
"2. On February 1, A contracts to supply B with natural gas for one year beginning on May 1, payment to be made each month. On March 1, A repudiates. On April 1, before B has taken any action in response to the repudiation, A notifies B that he retracts his repudiation. B’s duties under the contract are not discharged, and B has no claim against A.
4. The facts being otherwise as stated in Illustration 2, on March 15, B notifies A that he cancels the contract. B’s duties under the contract are discharged and B has a claim against A for damages for total breach ***„” (Emphasis added.) Restatement (Second) of Contracts § 256, Comments a, c (1981).
This rule makes sense as well. If an aggrieved party could treat the contract as rescinded or terminated without notice or other indication to the repudiating party, the rule allowing retraction of an anticipatory repudiation would be eviscerated. No repudiating party ever would be able to retract a repudiation, because after receiving a retraction, the aggrieved party could, if it wished, simply declare it had already decided to treat the repudiation as a rescission or termination of the contract. Defendants’ theory would effectively rewrite the common-law rule regarding retraction of anticipatory *991repudiation so that the repudiating party may retract an anticipatory repudiation only upon assent from the aggrieved party. This is not the common-law rule, and we decline to adopt defendants’ proposed revision of it.
Applying the actual common-law rule to the facts here, plaintiff sent defendants a letter dated June 14, which clearly and unambiguously indicated plaintiff intended to perform under the contract. However, defendants did not notify plaintiff, either expressly or impliedly, of an intent to treat the contract as rescinded until July 8. Nor is there anything in the record demonstrating any indication to plaintiff, prior to July 8, of an intent by defendants to treat the contract as rescinded or terminated. Thus, assuming plaintiff’s May 21 request for a lower purchase price constituted an anticipatory repudiation of the contract, plaintiff successfully retracted that repudiation in the letter dated June 14 because defendants had not yet materially changed their position or indicated to plaintiff an intent to treat the contract as rescinded. Therefore, because plaintiff had timely retracted any alleged repudiation of the contract, the trial court erred in granting summary judgment for defendants on the basis plaintiff repudiated the contract. Defendants were not entitled to judgment as a matter of law.
The trial court’s grant of summary judgment for defendants is reversed, and the cause is remanded.
Reversed and remanded.
COOK and McCULLOUGH, JJ„ concur.
11.3.2 Restatement (Second) of Contracts § 250 11.3.2 Restatement (Second) of Contracts § 250
§ 250 When a Statement or an Act Is a Repudiation
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A repudiation is
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(a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or
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(b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
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Illustrations:
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1. On April 1, A contracts to sell and B to buy land, delivery of the deed and payment of the price to be on July 30. On May 1, A tells B that he will not perform. A's statement is a repudiation.
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2. A contracts to build a house for B for $50,000, progress payments to be made monthly in an amount equal to 85% of the price of the work performed during the preceding month, the balance to be paid on the architect's certificate of satisfactory completion of the house. Without justification B fails to make a $5,000 progress payment and tells A that because of financial difficulties he will be unable to pay him anything for at least another month. If, after a month, it would be too late for B to cure his material failure of performance by making the delayed payment, B's statement is a repudiation. See Illustration 2 to § 237.
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3. The facts being otherwise as stated in Illustration 1, A does not tell B that he will not perform but says, “I am not sure that I can perform, and I do not intend to do so unless I am legally bound to.” A's statement is not a repudiation.
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4. The facts being otherwise as in Illustration 1, A tells C, a third person having no right under the contract, and not B, that he will not perform. C informs B of this conversation, although not requested by A to do so. A's statement is not a repudiation. But see Comments b and c to § 251.
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Illustrations:
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5. The facts being otherwise as stated in Illustration 1, A says nothing to B on May 1, but on that date he contracts to sell the land to C. A's making of the contract with C is a repudiation.
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6. The facts being otherwise as stated in Illustration 1, A says nothing to B on May 1, but on that date he mortgages the land to C as security for a $40,000 loan which is not payable until one year later. A's mortgaging the land is a repudiation. Compare Illustration 4 to § 251.
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7. A contracts to employ B, and B to work for A, the employment to last a year beginning in ten days. Three days after making the contract B embarks on a ship for a voyage around the world. B's embarking for the voyage is a repudiation.
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Illustrations:
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8. On April 1, A contracts to sell and B to buy land for $50,000, delivery of the deed and payment of the price to be on August 1. On May 1, the parties make an enforceable modification under which delivery of the deed and payment of the price are to be on July 30 instead of August 1. On June 1, A tells B that he will not deliver a deed until August 1. A's statement is not a repudiation unless the one-day delay would, in the absence of a repudiation, have given B a claim for damages for total breach. See Illustration 4 to § 242.
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9. The facts being otherwise as stated in Illustration 8, A tells B that he will not deliver a deed at all unless B agrees to accept it on August 1. A's statement is a repudiation. The result is the same even though A acts in the erroneous belief that the modification has no legal effect.
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11.3.3 Restatement (Second) of Contracts § 251 11.3.3 Restatement (Second) of Contracts § 251
§ 251 When a Failure to Give Assurance May Be Treated as a Repudiation
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(1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.
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(2) The obligee may treat as a repudiation the obligor's failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.
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Illustrations:
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1. A contracts to let B use his concert hall on the evening of May 7 for a performance by B's string quartet, in return for B's promise to perform and to pay A a percentage of the receipts. The contract provides that B is not discharged even if he is unable to transport his quartet to A's hall. On May 6, because of an unexpected airline strike, A reasonably believes that B's quartet will be unable to come the 3,000 miles necessary to perform in his hall as scheduled. Without demanding adequate assurance of due performance under the rule stated in this Section, A then contracts with C to let C hold a meeting in the hall on the evening of May 7. A's contract with C is a repudiation of his contract with B (§ 250), which gives rise to a claim by B against A for damages for total breach (§ 253). If, however, B is in fact unable to bring his quartet to A's hall on May 7, B's claim against A is discharged (§ 254).
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2. The facts being otherwise as stated in Illustration 1, B succeeds in chartering a plane and flies the 3,000 miles with his quartet in his private plane. He arrives in time to perform, but is unable to do so because C is using the hall. B has a claim against A for damages for total breach (§ 243).
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Illustrations:
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3. On May 1, A contracts to sell and B to buy a parcel of land for $50,000, delivery of the deed and payment of the price to be on July 30. Unknown to both A and B, C has a dower interest in the land. On May 15, B discovers this and demands that A give him adequate assurance of due performance. A fails to do so, and B commences an action against A on July 1. B had reasonable grounds to believe that A would commit a breach by non-performance that would of itself have given B a claim for damages for total breach. If the court concludes that a reasonable time for A to give assurances had passed on July 1, B properly treated A's failure to give assurances as a repudiation. B then has a claim for damages against A for total breach.
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4. The facts being otherwise as stated in Illustration 3, C's interest in the land is that of mortgagee under a mortgage that A can discharge at any time by payment of the mortgage debt. B had no reasonable grounds to believe that A would commit a breach, B could not treat A's failure to give assurances as a repudiation, and B has no claim for damages against A. Compare Illustration 6 to § 250.
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5. A contracts to sell and B to buy A's house, delivery of the deed and payment of the price to be made during September. On September 1, A offers to deliver a deed to B which is defective in that a fence projects beyond the front line of the house and the swimming pool lacks a certificate of occupancy. Both defects can be cured by A within the month, but A fails to reply to a demand by B that A assure B that A will cure them within that time. On September 20, B notifies A that he cancels the contract. On September 30, A, having cured the defects, offers to deliver a conforming deed to B. A court may conclude that, as a result of A's apparent inability to perform, B had reasonable grounds to believe that A would commit a breach by non-performance that would of itself have given B a claim for damages for total breach, that A failed upon demand by B to give adequate assurance of due performance within a reasonable time, and therefore that B properly treated A's failure as a repudiation. B then has a claim against A for damages for total breach.
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Illustration:
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6. The facts being otherwise as stated in Illustration 1, before contracting with C, A telephones B on May 6 and asks B to assure him that he will be there on May 7. B says only “We will do our best to get there.” B succeeds in chartering a plane and flies the 3,000 miles with his quartet. He arrives in time to perform, but is unable to do so because C is using the hall. In the absence of countervailing circumstances, a court should conclude that, as a result of B's apparent inability to perform, A had reasonable grounds to believe that B would commit a breach by non-performance that would of itself have given A a claim for damages for total breach, that because of the shortness of time a demand by telephone conformed to the duty of good faith and fair dealing (§ 205), that B failed upon such a demand to give adequate assurance of due performance, and therefore that A properly treated B's failure as a repudiation. A then has a claim against B for damages for total breach.
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Illustrations:
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7. The facts being otherwise as stated in Illustration 1, before contracting with C, A telephones B on May 6 and asks B to assure him that he will be there on May 7. B explains over the telephone that he has been able to charter a plane and expects to come as planned. B then flies the 3,000 miles with his quartet. He arrives in time to perform, but is unable to do so because C is using the hall. The assurance given by B was adequate in view of what it was reasonable to require, and therefore A could not treat B's failure to do more as a repudiation. B then has a claim against A for damages for total breach.
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8. The facts being otherwise as stated in Illustration 1, before contracting with C, A telephones B on May 6 and asks B to assure him that he will be there on May 7. B replies that he hopes to be able to charter a plane and that he will telephone A to let him know. A tells B that he must know by noon on May 7 in order to make alternative arrangements with C. B succeeds in chartering a plane and flies the 3,000 miles with his quartet. After he has arrived on the afternoon of May 7, he telephones A to assure him that he will perform. A court may conclude that, as a result of B's apparent inability to perform, A had reasonable grounds to believe that B would commit a breach by non-performance that would of itself have given A a claim for damages for total breach, that the assurances given by B were not within a reasonable time, and therefore that B properly treated B's delay in giving them as a repudiation. A then has a claim against B for damages for total breach.
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11.3.4 Restatement (Second) of Contracts § 253 11.3.4 Restatement (Second) of Contracts § 253
§ 253 Effect of a Repudiation as a Breach and on Other Party's Duties
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(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
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(2) Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance.
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Illustrations:
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1. On April 1, A and B make a contract under which B is to work for A for three months beginning on June 1. On May 1, A repudiates by telling B he will not employ him. On May 15, B commences an action against A. B's duty to work for A is discharged and he has a claim against A for damages for total breach.
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2. On July 1, A contracts to sell and B to buy a quantity of barrel staves, delivery and payment to be on December 1. On August 1, A repudiates by writing B that he will be unable to deliver staves at the contract price. On September 1, B commences an action against A. B's duty to pay for the staves is discharged and he has a claim against A for damages for total breach. See Uniform Commercial Code § 2-610.
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Illustrations:
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3. On February 1, A and B make an option contract under which, in consideration for B's payment of $100, A promises to convey to B a parcel of land on May 1 for $50,000, if B tenders that sum by that date. On March 1, A repudiates by selling the parcel to C. On April 1, B commences an action against A. Since A has not received the $50,000, the agreed exchange for his duty to sell the parcel to B, B has a claim against A for damages for total breach.
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4. On February 1, A and B make a contract under which, as consideration for B's immediate payment of $50,000, A promises to convey to B a parcel of land on May 1. On March 1, A repudiates by selling the parcel to C. On April 1, B commences an action against A. Since A has received the $50,000, the agreed exchange for his duty to sell the parcel to B, B has no claim against A for damages for breach of contract until performance is due on May 1.
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5. On February 1, A and B make a contract under which, as consideration for A's conveying a parcel of land to B, B promises to make annual payments of $10,000 for five years. B makes the payments for the first two years and on March 1 of the third year repudiates by telling A that he will not make any further payments. A commences an action against B. Since B has received the land, the agreed exchange for his duty to pay the remaining installments, A has no claim against B for damages for breach of contract until performance is due on the following February 1.
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6. On January 15, A and B make a contract under which A promises to convey to B a parcel of land on February 1, and B promises to pay A $10,000 at that time and the balance of $40,000 in four annual installments. A conveys the parcel to B and B pays A $10,000. On March 1, B repudiates by telling A that he will not make any further payments. A commences an action against B. Since B has received the land, the agreed exchange for his duty to make the remaining payments, A has no claim against B for damages for breach of contract, until performance is due on the following February 1.
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11.3.5 Restatement (Second) of Contracts § 256 11.3.5 Restatement (Second) of Contracts § 256
§ 256 Nullification of Repudiation or Basis for Repudiation
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(1) The effect of a statement as constituting a repudiation under § 250 or the basis for a repudiation under § 251 is nullified by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.
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(2) The effect of events other than a statement as constituting a repudiation under § 250 or the basis for a repudiation under § 251 is nullified if, to the knowledge of the injured party, those events have ceased to exist before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.
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Illustrations:
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1. On February 1, A contracts to supply B with natural gas for one year beginning on May 1, payment to be made each month. On June 1, A repudiates and fails to supply gas under the contract. On June 2, before B has taken any action in response to the repudiation, A resumes the supply of gas and notifies B that he retracts his repudiation. B has no claim against A based on the repudiation. B has a claim against A for damages for A's breach by non-performance for one day. Whether B's claim is one for damages for partial breach or for total breach is determined by the rule stated in § 243(1).
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2. On February 1, A contracts to supply B with natural gas for one year beginning on May 1, payment to be made each month. On March 1, A repudiates. On April 1, before B has taken any action in response to the repudiation, A notifies B that he retracts his repudiation. B's duties under the contract are not discharged, and B has no claim against A.
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Illustrations:
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3. The facts being otherwise as stated in Illustration 2, on March 15, B makes a contract with C for the supply of gas to replace that which he was to receive from A. B's duties under the contract are discharged and B has a claim against A for damages for total breach (§ 253).
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4. The facts being otherwise as stated in Illustration 2, on March 15, B notifies A that he cancels the contract. B's duties under the contract are discharged and B has a claim against A for damages for total breach (§ 253).
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5. On April 1, A contracts to sell and B to buy a parcel of land, delivery of the deed and payment of the price to be on July 30. On May 1, A sells the parcel to C and B learns of this. On June 1, before B has taken any action in response to the sale to C, A reacquires the land and B learns of this. B's duties under the contract are not discharged and B has no claim against A. Compare Illustrations 5 and 6 to § 250.
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11.3.6 UCC 2-609 11.3.6 UCC 2-609
Right to Adequate Assurance of Performance