11 Breach: Conditions and Substantial Performance 11 Breach: Conditions and Substantial Performance

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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

  • 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.
Comment:
a. “Condition” limited to event. “Condition” is used in this Restatement to denote an event which qualifies a duty under a contract. See the Introductory Note to this Topic. It is recognized that “condition” is used with a wide variety of other meanings in legal discourse. Sometimes it is used to denote an event that limits or qualifies a transfer of property. In the law of trusts, for example, it is used to denote an event such as the death of the settlor that qualifies his disposition of property in trust. See Restatement, Second, Trusts § 360. See also the rules on “conditional” delivery (§ 103) and “conditional” assignment (§§ 103, 331). Sometimes it is used to refer to a term (§ 5) in an agreement that makes an event a condition, or more broadly to refer to any term in an agreement (e.g., “standard conditions of sale”). For the sake of precision, “condition” is not used here in these other senses.
  • Illustration:
    • 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.
b. Uncertainty of event. Whether the reason for making an event a condition is to shift to the obligee the risk of its non-occurrence, or whether it is to induce the obligee to cause the event to occur (see Introductory Note to this Topic), there is inherent in the concept of condition some degree of uncertainty as to the occurrence of the event. Therefore, the mere passage of time, as to which there is no uncertainty, is not a condition and a duty is unconditional if nothing but the passage of time is necessary to give rise to a duty of performance. Moreover, an event is not a condition, even though its occurrence is uncertain, if it is referred to merely to measure the passage of time after which an obligor is to perform. See Comment b to § 227. Performance under a contract becomes due when all necessary events, including any conditions and the passage of any required time, have occurred so that a failure of performance will be a breach. See §§ 231- 43.
The event need not, in order to be a condition, be one that is to occur after the making of the contract, although that is commonly the case. It may relate to the present or even to the past, as is the case where a marine policy insures against a loss that may already have occurred. Furthermore, a duty may be conditioned upon the failure of something to happen rather than upon its happening, and in that case its failure to happen is the event that is the condition.
  • Illustrations:
    • 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.
    • 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.
c. Necessity of a contract. In order for an event to be a condition, it must qualify a duty under an existing contract. Events which are part of the process of formation of a contract, such as offer and acceptance, are therefore excluded under the definition in this section. It is not customary to call such events conditions. But cf. § 36(2) (“condition of acceptance”). For the most part, they are required by law and may not be dispensed with by the parties, while conditions are the result of, or at least subject to, agreement. Where, however, an offer has become an option contract, e.g., by the payment of a dollar (§ 87), the acceptance is a condition under the definition in this section.
  • Illustration:
    • 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.
d. Relationship of conditions. A duty may be subject to any number of conditions, which may be related to each other in various ways. They may be cumulative so that performance will not become due unless all of them occur. They may be alternative so that performance may become due if any one of them occurs. Or some may be cumulative and some alternative. Furthermore, a condition may qualify the duties of both parties. Cf. § 217.
  • Illustrations:
    • 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.
    • 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.
    • 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.
e. Occurrence of event as discharge. Parties sometimes provide that the occurrence of an event, such as the failure of one of them to commence an action within a prescribed time, will extinguish a duty after performance has become due, along with any claim for breach. Such an event has often been called a “condition subsequent,” while an event of the kind defined in this section has been called a “condition precedent.” This terminology is not followed here. Since a “condition subsequent,” so-called, is subject to the rules on discharge in § 230, and not to the following rules on conditions, it is not called a “condition” in this Restatement. Occasionally, although the language of an agreement says that if an event does not occur a duty is “extinguished,” “discharged,” or “terminated,” it can be seen from the circumstances that the event must ordinarily occur before performance of the duty can be expected. When a court concludes that, for this reason, performance is not to become due unless the event occurs, the event is, in spite of the language, a condition of the duty. See § 227(3). See also Comment a to § 230.
  • Illustrations:
    • 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.
    • 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.
f. Sealed contracts. The rules governing conditions stated in the Restatement of this Subject are applicable to sealed as well as unsealed contracts. The same rules have traditionally been applied to both types of contract with technical exceptions that are no longer of significance.

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

  • (1) Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused.
  • (2) Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur.
  • (3) Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur.
Comment:
a. Two effects. The unexcused non-occurrence of a condition has two possible effects on the duty subject to that condition. The first effect always follows and the second often does. The first, stated in Subsection (1), is that of preventing performance of the duty from becoming due. This follows from the definition of “condition” in § 224. Performance of the duty may still become due, however, if the condition occurs later within the time for its occurrence. The non-occurrence of the condition within that time has the additional effect, stated in Subsection (2), of discharging the duty. The time within which the condition can occur in order for the performance of the duty to become due may be fixed by a term of the agreement or, in the absence of such a term, by one supplied by the court (§ 204). Where discharge would produce harsh results, this second effect may be avoided by rules of interpretation (§§ 226, 228) or of excuse of conditions (Comment b and § 229).
  • Illustrations:
    • 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.
    • 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.
b. Excuse. The non-occurrence of a condition of a duty is said to be “excused” when the condition need no longer occur in order for performance of the duty to become due. The non-occurrence of a condition may be excused on a variety of grounds. It may be excused by a subsequent promise, even without consideration, to perform the duty in spite of the non-occurrence of the condition. See the treatment of “waiver” in § 84, and the treatment of discharge in §§ 273- 85. It may be excused by acceptance of performance in spite of the non-occurrence of the condition, or by rejection following its non-occurrence accompanied by an inadequate statement of reasons. See §§ 246- 48. It may be excused by a repudiation of the conditional duty or by a manifestation of an inability to perform it. See § 255; §§ 250- 51. It may be excused by prevention or hindrance of its occurrence through a breach of the duty of good faith and fair dealing (§ 205). See § 239. And it may be excused by impracticability. See § 271. These and other grounds for excuse are dealt with in other chapters of this Restatement. This Chapter deals only with one general ground, excuse to avoid forfeiture. See § 229.
c. Effect of excuse. When the non-occurrence of a condition of a duty is excused, the damages for breach of the duty will depend on whether or not the occurrence of the condition was also part of the performances to be exchanged under the exchange of promises. If it was not part of the agreed exchange, the obligor is liable for the same damages for which he would have been liable had the duty originally been unconditional. If it was part of the agreed exchange, however, the saving to the obligee resulting from the non-occurrence of the condition must be subtracted in determining the obligor's liability for damages. Rules for determining damages are set out in § 347; see generally §§ 346- 56. If the obligee is under a duty that the condition occur, the ground for the excuse of the non-occurrence of the condition may not be a ground for discharge of that duty. He may therefore be liable for breach of the duty in spite of the excuse of the non-occurrence of the condition. Not only may a party excuse entirely the non-occurrence of a condition of his duty, but he may merely excuse its non-occurrence during the period of time in which it would otherwise have to occur. If he does this, the non-occurrence of the condition during that period will not discharge the duty under Subsection (2), although its non-occurrence will ultimately have that effect. See Illustration 8 to § 84.
  • Illustrations:
    • 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.
    • 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.
    • 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.
d. Imposition of duty distinguished. When one party chooses to use the institution of contract to induce the other party to cause an event to occur, he may do so by making the event a condition of his own duty (Introductory Note to this Topic). Or he may do so by having the other party undertake a duty that the event occur. Or he may do both. But, as Subsection (3) makes clear, a term making an event a condition of an obligor's duty does not of itself impose a duty on the obligee and the non-occurrence of the event is not of itself a breach by the obligee. Unless the obligee is under such a duty, the non-occurrence of the event gives rise to no claim against him. The same term may, however, be interpreted not only to make an event a condition of the obligor's duty, but also to impose a duty on the obligee that it occur. And even where no term of the agreement imposes a duty that a condition occur, the court may supply such a term. See § 204.
  • Illustrations:
    • 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.
    • 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.
    • 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.
e. Ignorance immaterial. The rules stated in this Section apply without regard to whether a party knows or does not know of the non-occurrence of a condition of his duty.
  • Illustration:
    • 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.

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

  • An event may be made a condition either by the agreement of the parties or by a term supplied by the court.
Comment:
a. By agreement of the parties. No particular form of language is necessary to make an event a condition, although such words as “on condition that,” “provided that” and “if” are often used for this purpose. An intention to make a duty conditional may be manifested by the general nature of an agreement, as well as by specific language. Whether the parties have, by their agreement, made an event a condition is determined by the process of interpretation. That process is subject to the general rules that are contained in previous topics of this Chapter. For example, as in other instances of interpretation, the purpose of the parties is given great weight (§ 202(1)), and, in choosing between reasonable meanings, that meaning is generally preferred which operates against the draftsman (§ 206). There are also some special standards of preference that are of particular applicability to conditions, and these are set out in § 227.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
b. Nature of event. Just as the process of interpretation determines whether the parties have by their agreement made an event a condition, it also determines the nature of that event. Here too the process is subject to the general rules of interpretation stated earlier in the present Chapter, and here too there are some special standards of preference. These standards are set out in §§ 227(1) and 228.
  • Illustrations:
    • 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).
    • 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.
c. By a term supplied by court. When the parties have omitted a term that is essential to a determination of their rights and duties, the court may supply a term which is reasonable in the circumstances (§ 204). Where that term makes an event a condition, it is often described as a “constructive” (or “implied in law”) condition. This serves to distinguish it from events which are made conditions by the agreement of the parties, either by their words or by other conduct, and which are described as “express” and as “implied in fact” (inferred from fact) conditions. See Comments a and b to § 4. It is useful to distinguish “constructive” conditions, even though the distinction is necessarily somewhat arbitrary. For one thing, it is helpful in analysis and description to have terminology that reflects the two distinctive processes, sometimes called “interpretation” and “construction,” that give rise to conditions. See Uniform Commercial Code §§ 2-313 to 2-315, in which an analogous distinction is made between express and implied warranties. For another, to the extent that the parties have, by a term of their agreement, clearly made an event a condition, they can be confident that a court will ordinarily feel constrained strictly to apply that term, while the same court may regard itself as having considerable latitude in tailoring a similar term that it has itself supplied.
One example of such a term supplied by the court is the requirement of § 45(2) that the offeree, under an option contract, complete or tender the invited performance as a condition of the offeror's duty. A more common example occurs where an obligor's duty cannot be performed without some act by the obligee, and the court supplies a term making that act a condition of the obligor's duty. In most such situations, the obligee's own obligation of good faith and fair dealing (§ 205) imposes on him a duty to do the act, so that a material failure to perform that duty would, in any case, have the same effect as the non-occurrence of a condition under the rules relating to performances to be exchanged under an exchange of promises (§ 239). The examples given in the following illustrations involve situations where no duty to do the act is imposed.
  • Illustrations:
    • 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.
    • 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.

11.1.4 Restatement (Second) of Contracts §227 11.1.4 Restatement (Second) of Contracts §227

§ 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.
Comment:
a. Scope. The present Section states three standards of preference used in the process of interpretation with regard to conditions. They supplement the standards of preference in § 203, as well as the other rules set out in Topics 1 through 4 of this Chapter.
b. Condition or not. The non-occurrence of a condition of an obligor's duty may cause the obligee to lose his right to the agreed exchange after he has relied substantially on the expectation of that exchange, as by preparation or performance. The word “forfeiture” is used in this Restatement to refer to the denial of compensation that results in such a case. The policy favoring freedom of contract requires that, within broad limits (see § 229), the agreement of the parties should be honored even though forfeiture results. When, however, it is doubtful whether or not the agreement makes an event a condition of an obligor's duty, an interpretation is preferred that will reduce the risk of forfeiture. For example, under a provision that a duty is to be performed “when” an event occurs, it may be doubtful whether it is to be performed only if that event occurs, in which case the event is a condition, or at such time as it would ordinarily occur, in which case the event is referred to merely to measure the passage of time. In the latter case, if the event does not occur some alternative means will be found to measure the passage of time, and the non-occurrence of the event will not prevent the obligor's duty from becoming one of performance. If the event is a condition, however, the obligee takes the risk that its non-occurrence will discharge the obligor's duty. See § 225(2). When the nature of the condition is such that the uncertainty as to the event will be resolved before either party has relied on its anticipated occurrence, both parties can be entirely relieved of their duties, and the obligee risks only the loss of his expectations. When, however, the nature of the condition is such that the uncertainty is not likely to be resolved until after the obligee has relied by preparing to perform or by performing at least in part, he risks forfeiture. If the event is within his control, he will often assume this risk. If it is not within his control, it is sufficiently unusual for him to assume the risk that, in case of doubt, an interpretation is preferred under which the event is not a condition. The rule is, of course, subject to a showing of a contrary intention, and even without clear language, circumstances may show that he assumed the risk of its non-occurrence.
Although the rule is consistent with a policy of avoiding forfeiture and unjust enrichment, it is not directed at the avoidance of actual forfeiture and unjust enrichment. Since the intentions of the parties must be taken as of the time the contract was made, the test is whether a particular interpretation would have avoided the risk of forfeiture viewed as of that time, not whether it will avoid actual forfeiture in the resolution of a dispute that has arisen later. Excuse of the non-occurrence of a condition because of actual forfeiture is dealt with in § 229, and rules for the avoidance of unjust enrichment as such are dealt with in the Restatement of Restitution and in Chapter 16 of this Restatement, particularly §§ 370- 77.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
c. Nature of event. In determining the nature of the event that is made a condition by the agreement, as in determining whether the agreement makes an event a condition in the first place (see Comment b), it will not ordinarily be supposed that a party has assumed the risk of forfeiture. Where the language is doubtful, an interpretation is generally preferred that will avoid this risk. This standard of preference finds an important application in the case of promises to pay for work done if some independent third party, such as an architect, surveyor or engineer, is satisfied with it, where the risk of forfeiture in the case of a judgment that is dishonest or based on a gross mistake as to the facts is substantial. The standard does not, however, help a party if the condition is within his control or if the circumstances otherwise indicate that he assumed that risk.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
d. Condition or duty. When an obligor wants the obligee to do an act, the obligor may make his own duty conditional on the obligee doing it and may also have the obligee promise to do it. Or he may merely make his own duty conditional on the obligee doing it. Or he may merely have the obligee promise to do it. (See Introductory Note to this Topic and Comment d to § 225). It may not be clear, however, which he has done. The rule in Subsection (2) states a preference for an interpretation that merely imposes a duty on the obligee to do the act and does not make the doing of the act a condition of the obligor's duty. The preferred interpretation avoids the harsh results that might otherwise result from the non-occurrence of a condition and still gives adequate protection to the obligor under the rules of Chapter 10 relating to performances to be exchanged under an exchange of promises. Under those rules, particularly §§ 237- 41, the obligee's failure to perform his duty has, if it is material, the effect of the non-occurrence of a condition of the obligor's duty. Unless the agreement makes it clear that the event is required as a condition, it is fairer to apply these more flexible rules. The obligor will, in any case, have a remedy for breach. In many instances the rule in Subsection (1) will also apply and will reinforce the preference stated in Subsection (2).
This standard of preference applies only where the event is within the obligee's control. Where it is within the obligor's control (e.g., his honest satisfaction with the obligee's performance), within a third party's control (e.g., an architect's satisfaction with performance), or within no one's control (e.g., the accidental destruction of the subject matter), the preferential rule does not apply since it is not usual for the obligee to undertake a duty that such an event will occur. Although the obligee can, by appropriate language, undertake a duty that an event that is not within his control will occur, such an undertaking must be derived from the agreement of the parties under the general rules of interpretation stated earlier in the present Chapter without resort to this standard of preference.
Furthermore, this standard of preference does not apply when the contract is of a type under which only the obligor generally undertakes duties. It therefore does not apply to the typical insurance contract under which only the insurer generally undertakes duties, and a term requiring an act to be done by the insured is not subject to this standard of preference. In view of the general understanding that only the insurer undertakes duties, the term will be interpreted as making that event a condition of the insurer's duty rather than as imposing a duty on the insured.
  • Illustrations:
    • 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.
    • 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.
    • 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.
e. Condition or discharge. Circumstances may show that the parties intended to make an event a condition of an obligor's duty even though their language appears to make the non-occurrence of the event a ground for discharge of his duty after performance has become due. See Comment e to § 224. An example is the traditional form of bond, which states that the obligor is under a duty to perform, but that the duty will be discharged if something happens. The language, in spite of its form, is interpreted so that the failure of that thing to happen is a condition of the obligor's duty. Unless that condition occurs, no performance is due. Although this form of expression persists in legal documents, only rarely do the parties intend that one of them shall be under a duty to perform which is to cease on the occurrence of something that is still uncertain. The clearest language is therefore necessary to justify such an interpretation, and if the language is doubtful a contrary interpretation is preferred.
  • Illustrations:
    • 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.
    • 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.

11.1.5 Restatement (Second) of Contracts §229 11.1.5 Restatement (Second) of Contracts §229

§ 229 Excuse of a Condition to Avoid Forfeiture

  • 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.
Comment:
a. Relation to other rules. As is pointed out in Comment b to § 227, the non-occurrence of a condition of the obligor's duty may result in forfeiture by the obligee. Forfeiture may sometimes be avoided by application of the general rules of interpretation stated in the present Chapter, such as the rule on interpretation against the draftsman (§ 206). It may sometimes be avoided by application of the special rules on interpretation stated in the present Topic with regard to conditions (§§ 227(1), 228). But if the term that requires the occurrence of the event as a condition is expressed in unmistakable language, the possibility of forfeiture will not affect the interpretation of that language. See Comment b to § 227. Nevertheless, forfeiture may sometimes still be avoided by application of the rules on excuse of conditions. See Comment b to § 225. Under the present Section a court may, in appropriate circumstances, excuse the non-occurrence of a condition solely on the basis of the forfeiture that would otherwise result. Although both this Section and § 208, on unconscionable contract or term, limit freedom of contract, they are designed to reach different types of situations. While § 208 speaks of unconscionability “at the time the contract is made,” this Section is concerned with forfeiture that would actually result if the condition were not excused. It is intended to deal with a term that does not appear to be unconscionable at the time the contract is made but that would, because of ensuing events, cause forfeiture.
b. Disproportionate forfeiture. The rule stated in the present Section is, of necessity, a flexible one, and its application is within the sound discretion of the court. Here, as in § 227(1), “forfeiture” is used to refer to the denial of compensation that results when the obligee loses his right to the agreed exchange after he has relied substantially, as by preparation or performance on the expectation of that exchange. See Comment b to § 227. The extent of the forfeiture in any particular case will depend on the extent of that denial of compensation. In determining whether the forfeiture is “disproportionate,” a court must weigh the extent of the forfeiture by the obligee against the importance to the obligor of the risk from which he sought to be protected and the degree to which that protection will be lost if the non-occurrence of the condition is excused to the extent required to prevent forfeiture. The character of the agreement may, as in the case of insurance agreements, affect the rigor with which the requirement is applied.
  • Illustrations:
    • 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.
    • 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.
c. Limitation on scope. The rule of this Section applies only where occurrence of the condition was not a material part of the agreed exchange. These are situations where, under § 84, the non-occurrence of the condition could have been excused by a promise to perform the duty in spite of its non-occurrence. It is not enough that the actual non-occurrence happened to involve a departure that was not a material part of the agreed exchange, if the occurrence of the condition was a material part of that exchange. A court may, of course, ignore trifling departures.
A court need not excuse entirely the non-occurrence of the condition, but may merely excuse its non-occurrence during the period of time in which it would otherwise have to occur (see Comment c to § 225), if it concludes that the time of its occurrence is not a material part of the agreed exchange. This conclusion is sometimes summed up by the phrase that “time is not of the essence.”
  • Illustrations:
    • 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.
    • 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.
    • 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.

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

  • (1) Full performance of a duty under a contract discharges the duty.
  • (2) When performance of a duty under a contract is due any non-performance is a breach.
Comment:
a. Discharge by performance. Under the rule stated in Subsection (1), a duty is discharged when it is fully performed. Nothing less than full performance, however, has this effect and any defect in performance, even an insubstantial one, prevents discharge on this ground. The defect need not be wilful or even negligent. Although a court may ignore trifling departures, performance that is merely substantial does not result in discharge under Subsection (1). See Comment d to § 237. A duty may, of course, be discharged on some other ground. See Chapter 12. For example, a duty that has not been fully performed may be discharged on the ground of impracticability of performance. See Chapter 11.
  • Illustration:
    • 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.
b. Effect of non-performance. Non-performance is not a breach unless performance is due. Performance may not be due because a required period of time has not passed, or because a condition has not occurred (§ 225), or because the duty has already been discharged (Chapter 12) as, for example, by impracticability of performance (Chapter 11). In such a case non-performance is justified. When performance is due, however, anything short of full performance is a breach, even if the party who does not fully perform was not at fault and even if the defect in his performance was not substantial. Non-performance of a duty when performance is due is a breach whether the duty is imposed by a promise stated in the agreement or by a term supplied by the court (§ 204), as in the case of the duty of good faith and fair dealing (§ 205). Non-performance includes defective performance as well as an absence of performance.
  • Illustrations:
    • 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.
    • 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.
    • 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.
c. Statute of Frauds. Non-performance can be a breach of a contract even though, at the time of the non-performance, the contract is unenforceable because of the Statute of Frauds (§§ 8, 138). Non-performance when performance is due still gives rise to a claim for damages for which a court will grant relief if the Statute is subsequently satisfied as, for example, by the later signing of a memorandum or by an admission in court. See Comments c and d to § 133 and Comment b to § 136. If the Statute is subsequently satisfied, the claim is one for damages for a breach that occurred previously, at the time of the actual non-performance, and not for one that occurred at the time of the later satisfaction of the Statute.
  • Illustration:
    • 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.

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

  • 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.
Comment:
a. Excuse of non-occurrence of condition. Where a duty of one party is subject to the occurrence of a condition, the additional duty of good faith and fair dealing imposed on him under § 205 may require some cooperation on his part, either by refraining from conduct that will prevent or hinder the occurrence of that condition or by taking affirmative steps to cause its occurrence. Under § 235(2), non-performance of that duty when performance is due is a breach. See Illustration 3 to § 235. Under this Section it has the further effect of excusing the non-occurrence of the condition itself, so that performance of the duty that was originally subject to its occurrence can become due in spite of its non-occurrence. See Comments b and c to § 225. The rule stated in this Section only applies, however, where the lack of cooperation constitutes a breach, either of a duty imposed by the terms of the agreement itself or of a duty imposed by a term supplied by the court. There is no breach if the risk of such a lack of cooperation was assumed by the other party or if the lack of cooperation is justifiable.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
b. Contribute materially. Although it is implicit in the rule that the condition has not occurred, it is not necessary to show that it would have occurred but for the lack of cooperation. It is only required that the breach have contributed materially to the non-occurrence. Nevertheless, if it can be shown that the condition would not have occurred regardless of the lack of cooperation, the failure of performance did not contribute materially to its non-occurrence and the rule does not apply. The burden of showing this is properly thrown on the party in breach.
  • Illustrations:
    • 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.
    • 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.
    • 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.
c. Exceptions. Under §§ 237 and 238, it may be required as a condition of one party's duty that the other party perform or offer to perform his duty. A breach by the first party of his duty of good faith and fair dealing will, if material and not cured in time, discharge that duty of the other party (§ 237), eliminating the requirement that the other party perform or offer to perform it. The discharge of the duty has the additional effect of excusing the non-occurrence of the condition. But non-occurrence of the condition is excused only if the duty is discharged. The rule stated in this Section is, therefore, not applicable to such situations. See Illustrations 4, 5, and 7 to § 237.

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

Ciparick, J.

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

  • (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.
Comment:
a. Advantages of simultaneous performance. A requirement that the parties perform simultaneously where their performances are to be exchanged under an exchange of promises is fair for two reasons. First, it offers both parties maximum security against disappointment of their expectations of a subsequent exchange of performances by allowing each party to defer his own performance until he has been assured that the other will perform. This advantage is implemented by the rule stated in § 238, which deals with offers to perform. Second, it avoids placing on either party the burden of financing the other before the latter has performed. Subsection (1) therefore imposes a requirement of simultaneous performance whenever this is feasible under the contract, in the absence of language or circumstances indicating a contrary intention. A notable example of such a requirement is that laid down for contracts for the sale of goods by Uniform Commercial Code §§ 2-507 and 2-511. The requirement is subject to the agreement of the parties, as by an express provision extending credit to the buyer, or one requiring him to pay against documents or to furnish a letter of credit. Even absent an express provision, a contrary intention may be shown by circumstances including usage of trade and course of dealing (§§ 221, 223; Uniform Commercial Code § 1-205).
b. When simultaneous performance possible under agreement. In the absence of language or circumstances showing a contrary intention, the requirement of simultaneous performance stated in Subsection (1) applies whenever such performance is possible, consistent with the terms of the contract. A major instance where simultaneous performance is not possible occurs when one party's performance is continuous over some substantial period of time, a situation that is dealt with in Subsection (2). However, as is the case for the requirement of the preceding section that the whole performance be possible at one time, the requirement of simultaneous performance is not to be applied so literally as to exclude instances in which the objectives of the requirement can be fulfilled although performance cannot be instantaneous. See Comment a to § 233. A less important instance where simultaneous performance is not possible occurs when distance and lack of adequate communications make it impossible to assure the parties that performance is taking place at the same time, so that although the performance of each party can be instantaneous, the two performances cannot be simultaneous within the meaning of Subsection (1). Cases in which simultaneous performance is possible under the terms of the contract can be grouped into five categories: (1) where the same time is fixed for the performance of each party; (2) where a time is fixed for the performance of one of the parties and no time is fixed for the other; (3) where no time is fixed for the performance of either party; (4) where the same period is fixed within which each party is to perform; (5) where different periods are fixed within which each party is to perform. The requirement of simultaneous performance applies to the first four categories. The requirement does not apply to the fifth category, even if simultaneous performance is possible, because in fixing different periods for performance the parties must have contemplated the possibility of performance at different times under their agreement. Therefore in cases in the fifth category the circumstances show an intention contrary to the rule stated in Subsection (1).
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
c. When simultaneous performance possible in part. The requirement of simultaneous performance stated in Subsection (1) also applies where only part rather than all of the performance of one party can be performed simultaneously with either part or all of the performance of the other party. It therefore applies to the situations discussed in Comment b to § 233 and exemplified by Illustration 3 to that section. But it is broader than this and also applies, for example, to instances where some part performance of one party can be rendered simultaneously with the entire performance of the other party. See Comment f and Illustration 12.
  • Illustrations:
    • 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.
    • 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.
d. When simultaneous performance later becomes possible. Although different times or periods were originally fixed for the performance of each party, performance by the party who is to perform first may sometimes be delayed until the time for performance by the other party has arrived. If the latter party is entitled to and does assert that his remaining duties of performance are discharged because of the delay, under the rule stated in § 237, no question of the order of performance remains. Unless the delay is justified, he will also have a claim for damages for total breach based on all of his remaining rights to performance. (§§ 236(1), 243(1)). If, however, he is not entitled to assert that his remaining duties of performance are discharged, or if he does not assert this even though he is entitled to do so, a question of the order of performances remains. Unless the delay is justified he will, of course, have a claim for damages for partial breach because of the delay. Whether or not the delay is justified, he can at least insist on simultaneous performance. (As to judicial supervision of the requirement of simultaneous performance where the injured party has brought an action before the time when his own performance is due and that time then arrives before he has obtained and enforced a judgment, see Comment c and Illustration 5 to § 238.) There may be circumstances, however, in which it is appropriate for him to require the other party to perform first, as where the parties to a sale of goods contemplate that the buyer will need the time specified between delivery and payment to resell the goods in order to pay the price. In such a case the right of the party in delay to receive payment may be subject to postponement.
  • Illustration:
    • 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.
e. Where performance requires a period of time. Where the performance of one party requires a period of time and the performance of the other party does not, their performance can not be simultaneous. Since one of the parties must perform first, he must forego the security that a requirement of simultaneous performance affords against disappointment of his expectation of an exchange of performances, and he must bear the burden of financing the other party before the latter has performed. See Comment a. Of course the parties can by express provision mitigate the harshness of a rule that requires that one completely perform before the other perform at all. They often do this, for example, in construction contracts by stating a formula under which payment is to be made at stated intervals as work progresses. But it is not feasible for courts to devise such formulas for the wide variety of such cases that come before them in which the parties have made no provision. Centuries ago, the principle became settled that where work is to be done by one party and payment is to be made by the other, the performance of the work must precede payment, in the absence of a showing of a contrary intention. It is sometimes supposed, that this principle grew out of employment contracts, and reflects a conviction that employers as a class are more likely to be responsible than are workmen paid in advance. Whether or not the explanation is correct, most parties today contract with reference to the principle, and unless they have evidenced a contrary intention it is at least as fair as the opposite rule would be.
f. Applicability of rule. The rule stated in Subsection (2) usually finds its application to contracts involving services, such as construction and employment contracts. The common practice of making express provision for progress payments has diminished its importance with regard to the former, and the widespread enactment of state wage statutes giving the employee a right to the frequent periodic payment of wages has lessened its significance with regard to the latter. Nevertheless, it is a helpful rule for residual cases not otherwise provided for. It applies not only to contracts under which the performance of one party is more or less continuous, but also to contracts where performance consists of a series of acts with an interval of time between them. See Comment c. Under a contract of the latter type, simultaneity may be possible in part and, to the extent that it is possible, the rule stated in Subsection (2) is subject to that stated in Subsection (1). See Illustrations 6 and 12.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.

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

  • 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.
Comment:
a. Effect of non-occurrence of condition. Under the rule stated in this Section, a material failure of performance, including defective performance as well as an absence of performance, operates as the non-occurrence of a condition. Under § 225, the non-occurrence of a condition has two possible effects on the duty subject to that condition. See Comment a to § 225. The first is that of preventing performance of the duty from becoming due, at least temporarily (§ 225(1)). The second is that of discharging the duty when the condition can no longer occur (§ 225(2)). A material failure of performance has, under this Section, these effects on the other party's remaining duties of performance with respect to the exchange. It prevents performance of those duties from becoming due, at least temporarily, and it discharges those duties if it has not been cured during the time in which performance can occur. The occurrence of conditions of the type dealt with in this Section is required out of a sense of fairness rather than as a result of the agreement of the parties. Such conditions are therefore sometimes referred to as “constructive conditions of exchange.” Cf. § 204. What is sometimes referred to as “failure of consideration” by courts and statutes (e.g., Uniform Commercial Code § 3-408) is referred to in this Restatement as “failure of performance” to avoid confusion with the absence of consideration. Circumstances significant in determining whether a failure is material are set out in § 241. Circumstances significant in determining the period of time after which remaining duties are discharged, if a material failure has not been cured, are set out in § 242. The rules stated in this Section and the one following apply without regard to whether or not the failure of performance is a breach. They apply, for example, even though the failure is justified on the ground of impracticability of performance (Chapter 11). Illustrations of the operation of these rules in situations in which the failure is justified are given in other chapters under the sections that deal with the particular justification, such as impracticability. See, e.g., §§ 267, 268. The illustrations in this Chapter concern, for the most part, their operation in situations where the failure is a breach. But see, e.g., Illustration 3. The rules of this Section and the one following apply even when the promise of the party in default is unenforceable under the Statute of Frauds, while the promise of the other party is enforceable. See § 140. They are, of course, subject to variation by agreement of the parties.
  • Illustrations:
    • 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.
    • 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).
    • 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.
b. First material failure of performance. In many disputes over failure of performance, both parties fail to finish performance, and the question is whether one of them is justified in so doing by the other party's failure. (Compare Comment d.) This Section states the fundamental rule under which that question is to be answered. (The liability of the other party for damages for total breach is governed by the rule stated in § 243.) The rule is based on the principle that where performances are to be exchanged under an exchange of promises, each party is entitled to the assurance that he will not be called upon to perform his remaining duties of performance with respect to the expected exchange if there has already been an uncured material failure of performance by the other party. The central problem is in determining which party is chargeable with the first uncured material failure of performance. In determining the relative times when performance is due, the terms of the agreement and the supplementary rules on time for performance should be considered (§§ 233, 234). In determining whether there has been a failure of performance, the terms of the agreement and the supplementary rules such as those on omitted essential terms (§ 204) and the duty of good faith and fair dealing (§ 205) should be considered. In determining whether a failure of performance is material, the circumstances listed in § 241 should be considered. Even if the failure is material, it may still be possible to cure it by subsequent performance without a material failure. In the event of cure the injured party may still have a claim for any remaining non-performance as well as for any delay. In determining when it is too late to cure a failure of performance, the circumstances listed in § 242 should be considered. In making all of these determinations the situation of the parties is to be viewed as of the time for performance and in terms of the actual failure. If, for example, under the terms of the agreement the order of performance depends on an event subsequent to the time of the making of the contract, that event is to be taken into account.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
c. Ignorance immaterial. The non-occurrence of a condition of a party's duty has the effects stated in § 225 even though that party does not know of its non-occurrence. See Comment e to § 225. It follows that one party's material failure of performance has the effect of the non-occurrence of a condition of the other party's remaining duties, under the rule stated in this Section, even though that other party does not know of the failure. If the other party is discharged as the result of an unjustified material failure of which he is ignorant, he has a claim for damages for total breach (§ 245). But any loss that he has suffered as a result of his own actions taken in ignorance of the breach cannot be recovered since his actions were not caused by the other's breach. See Illustrations 8 and 9.
A party's ignorance may, however, cause him to lose rights under rules other than the one stated in this section. He may, for example, be precluded from relying on a condition where, through ignorance, he fails to make timely objection. So, under Uniform Commercial Code § 2-608, a buyer of goods who accepts them in ignorance of their defects loses his right to insist upon strict performance as a condition of his duty to pay the price. Other rules may preclude a party from relying on a failure of performance as the non-occurrence of a condition where, because of unreasonable ignorance, he has accepted the other party's performance or has given no reasons or the wrong reasons for its rejection. See, e.g., §§ 246 and 248; Uniform Commercial Code §§ 2-605, 2-607.
  • Illustrations:
    • 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.
    • 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.
    • 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).
d. Substantial performance. In an important category of disputes over failure of performance, one party asserts the right to payment on the ground that he has completed his performance, while the other party refuses to pay on the ground that there is an uncured material failure of performance. (Compare Comment b.) A typical example is that of the building contractor who claims from the owner payment of the unpaid balance under a construction contract. In such cases it is common to state the issue, not in terms of whether there has been an uncured material failure by the contractor, but in terms of whether there has been substantial performance by him. This manner of stating the issue does not change its substance, however, and the rule stated in this Section also applies to such cases. If there has been substantial although not full performance, the building contractor has a claim for the unpaid balance and the owner has a claim only for damages. If there has not been substantial performance, the building contractor has no claim for the unpaid balance, although he may have a claim in restitution (§ 374). The considerations in determining whether performance is substantial are those listed in § 241 for determining whether a failure is material. See Comment b to § 241. If, however, 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. If, therefore, the agreement makes full performance a condition, substantial performance 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. See § 229 and Illustration 1 to that section.
  • Illustration:
    • 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.
e. Duties affected. Under the rule stated in this Section, only duties with respect to the performances to be exchanged under the particular exchange of promises are affected by a failure of one of those performances. A duty under a separate contract is not affected (see Comment d to § 231 and Illustration 5 to that section), nor is a duty under the same contract affected if it was not one to render a performance to be exchanged under an exchange of promises (see Illustrations 3 and 4 to § 232). Furthermore, only duties to render performance are affected. A claim for damages that has already arisen as a result of a claim for partial breach is not discharged under the rule stated in this Section.
  • Illustration:
    • 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.

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.

 

Comment:
a. Effect of offer to perform. Where the performances are to be exchanged simultaneously under an exchange of promises, each party is entitled to refuse to proceed with that simultaneous exchange until he is reasonably assured that the other party will perform at the same time. If a party actually performs, his performance both discharges his own duty (§ 235(1)) and amounts to the occurrence of a condition of the other party's duty (§ 237). But it is not necessary that he actually perform in order to produce this latter effect. It is enough that he make an appropriate offer to perform, since it is a condition of each party's duties of performance with respect to the exchange that there be no uncured material failure by the other party at least to offer performance. Circumstances significant in determining whether a failure is material are set out in § 241. Such an offer of performance by a party amounts to the occurrence of a condition of the other party's duty to render performance, although it does not amount to performance by the former. Until a party has at least made such an offer, however, the other party is under no duty to perform, and if both parties fail to make such an offer, neither party's failure is a breach. (If one of the parties is already in breach, as where he has repudiated or has failed to go to the place appointed for the simultaneous exchange, the other party's duty to render performance may already have been discharged under §§ 253(2) or 237, giving him a claim for damages for total breach under §§ 253(1) or 243(1).) When it is too late for either to make such an offer, both parties are discharged by the non-occurrence of a condition. A failure to offer performance can be cured, if an appropriate offer is made in time (§ 242). Cf. Comment b to § 237. The fact that a party is ignorant of a defect in the other party's offer is immaterial. See Comment c to § 237.
  • Illustrations:
    • 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.
    • 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.
b. What amounts to an offer to perform. An offer of performance meets the requirement stated in this Section even though it is conditional on simultaneous performance by the other party. The offer must be accompanied with manifested present ability to make it good, but the offeror need not go so far as actually to hold out that which he is to deliver. (On the meaning of the term “manifested,” see Comment b to § 2.) Thus the Uniform Commercial Code § 2-503(1) requires only “that the seller put and hold conforming goods at the buyer's disposition and give the buyer any notice reasonably necessary to enable him to take delivery.” In this respect the requirement of this Section is less exacting than that of tender under, for example, § 45 or § 62. Any conduct, including tender, that goes beyond an offer of performance will, of course, also satisfy the requirement. The requirement of an offer of performance is to be applied in the light of what is reasonably to be expected by the parties in view of the practical difficulties of absolute simultaneity (see Comment b to § 234) and is subject to the agreement of the parties, as supplemented or qualified by usage (§§ 221, 222) and course of dealing (§ 223).
  • Illustration:
    • 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.
c. Judicial supervision. In an action for specific performance or for the price, a court may ensure that the party seeking relief makes an offer of performance that meets the requirements of this Section by granting relief conditional on such an offer. Uniform Commercial Code § 2-709(2), for example, provides that “where the seller sues for the price, he must hold for the buyer any goods which have been identified to the contract and are still in his control….” See Illustration 4. See also Comment a to § 358 with respect to specific performance. If performances, although not originally due simultaneously, have become due simultaneously after the commencement of the action because the earlier performance has been delayed, the granting of such relief is equally appropriate. Even though the performances do not become due simultaneously until after judgment, the court may exercise its power on either the defendant's request or on its own motion. See Illustration 5.
  • Illustrations:
    • 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).
    • 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.

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

  • (1) A party's failure to render or to offer performance may, except as stated in Subsection (2), affect the other party's duties under the rules stated in §§ 237 and 238 even though failure is justified by the non-occurrence of a condition.
  • (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.
Comment:
a. General rule. The rules stated in §§ 237 and 238 apply to any uncured material failure, whether or not it is a breach. They therefore apply even when a party's failure is justified on the ground that performance has not become due because of the non-occurrence of a condition of his duty (§ 224). Subsection (1) makes it clear that this is so, as a general rule. The general rule is based on the premise that the other party did not assume the risk that he would have to perform even if the expected exchange was not forthcoming because of the non-occurrence of the condition. His expectation is that even if the condition does not occur, he will not be called upon to perform unless that exchange is forthcoming. He is therefore entitled to refuse to perform if there is a failure of the return performance, even if that failure is not a breach because of the non-occurrence of the condition. In that case, he has, of course, no claim for damages, although he may have one in restitution. See §§ 370- 77.
  • Illustration:
    • 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.
b. Assumption of risk. Subsection (2) states an exception to the general rule to cover the case in which a party assumes the risk that he will have to perform even if the agreed exchange is not forthcoming because of the non-occurrence of a condition. Since a condition is by definition not certain to occur (§ 224), every obligee of a conditional duty assumes a risk. It is the premise of the general rule that he assumes only the risk that if the condition does not occur, the expected exchange will not be carried out on either side. See Illustration 1. But sometimes he assumes the greater risk that, if the condition does not occur, he will have to carry out his side of the exchange even though it is not carried out on the other side. If he has assumed this greater risk, then conduct on the other side which would otherwise operate as a failure to perform under § 237 or to offer to perform under § 238 does not so operate. The nature of the risk taken by a party who enters into such an exchange of promises is sometimes indicated by describing the promise that he receives as “aleatory.” See Comment c to § 232.
  • Illustrations:
    • 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.
    • 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.

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.

 

 

Comment:
a. Mitigating effect of the rule. Under the rule stated in § 237, a party's failure to perform may cause him to lose his right to the agreed exchange after he has relied substantially on the expectation of that exchange, as by either preparation or performance. The risk of forfeiture is similar to that which arises on the non-occurrence of a condition stated in the agreement. See Comment a to § 227. But because the failure must be material in order to have this effect under § 237, courts can temper the application of those sections in appropriate cases to avoid forfeiture in a way that is not possible where the agreement itself states the condition. Compare §§ 241 and 242 with § 229. In addition, forfeiture may sometimes be reduced or avoided by allowing a party whose failure has been material to have restitution in accordance with the policy favoring avoidance of unjust enrichment. See §§ 370- 77. This Section embodies another mitigating doctrine which reduces the risk of forfeiture in that important class of cases in which it is proper to regard corresponding parts of the performances of each party as agreed equivalents. Its effect is to give a party who has performed one of these parts the right to its agreed equivalent just as if the parties had made a separate contract with regard to that pair of corresponding parts. A failure as to some other part does not affect this right. See Comment d to § 231. Of course, if the failure amounts to a breach, the injured party has a claim for damages. Substantial performance of such a part has the same effect with regard to such a pair of agreed equivalents as substantial performance of the whole has under § 237 with respect to the entire contract. See Comment d to § 237.
b. Separate contracts distinguished. When it is proper to regard parts of pairs of corresponding performances under a contract as agreed equivalents, the contract is sometimes loosely said to be “divisible” or “severable.” But under the rule stated in this Section, the pairs of corresponding parts are not treated as if they were separate contracts. If there are two separate contracts, one party's performance under the first and the other party's performance under the second are not to be exchanged under a single exchange of promises, and even a total failure of performance by one party as to the first has no necessary effect on the other party's duty to perform the second. Comment d to § 231. (On the situation if the failure gives reasonable grounds to believe that the other party will commit a breach of the second, see §§ 251 and 252.) This is not so, however, if there is a single contract under which the parties are to exchange performances, even though it is proper to regard pairs of corresponding parts of those performances as agreed equivalents. If there is an uncured material failure by either party, he can claim compensation for any parts that he has already performed, but he cannot enforce the contract with respect to any other pair of corresponding parts, including the part or parts that he has failed to perform. See Illustration 3. With respect to those parts the rule of § 237 still applies, for the parties are bound by a single contract and not by a series of separate contracts for each pair of corresponding parts. Although the pairs of performances may be regarded as agreed equivalents, the parties exchanged promises for an exchange of their whole performances.
  • Illustrations:
    • 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.
    • 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.
    • 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).
c. Order of performance distinguished. The terms “divisible” and “severable” are sometimes used, not only in determining whether the rule stated in this Section is applicable, but also in determining whether a party's performance is due at one time or in installments (§ 233). Many of the contracts covered by the rule stated in this Section happen also to be contracts in which performance of each party is to be given in installments, corresponding to the times of the other party's performance. Indeed, the fact that the order of performance involves such pairs of corresponding parts may suggest that it is proper to regard those pairs as agreed equivalents. But it does not necessarily follow that it is proper, and in many contracts under which performance is to be in pairs of corresponding parts, it is not proper to regard the parts of those pairs as agreed equivalents. See Illustrations 7 and 9. Conversely, in many contracts under which performance of one or both parties is to be at one time, it is proper to regard those performances as composed of pairs of agreed equivalents. See Illustrations 2, 8 and 10. Two distinct determinations are involved and it is undesirable to obscure this by employing the same terminology for both.
d. Apportionment. The rule stated in this Section cannot be applied unless the parties' performances can be apportioned into corresponding pairs of part performances. The process of apportionment is essentially one of calculation and the rule can only be applied where calculation is feasible. It is enough, however, if the price of separate items is separately stated in the agreement itself or in a price list on which the agreement was based, or can be reliably ascertained from stated prices for components or from a total price for similar items.
  • Illustrations:
    • 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.
    • 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.
e. Agreed equivalents. The corresponding pairs of performances so apportioned only come within the rule stated in this Section if it is proper to regard the parts of each pair as agreed equivalents. The parties may, by express provision, determine either that it is or is not proper so to regard them. But they do not often do this, and, because separate pairs of corresponding parts are not the subjects of separate bargains (see Comment b), the parties usually cannot even be said to have had any actual intention on the point. Whether it is proper to regard the parts of each pair as agreed equivalents will usually depend on considerations of fairness, similar to those that guide a court in deciding whether to supply a term under § 204. Decisions holding that a contract is or is not “divisible” or “severable” for some other purpose, for example in connection with the rules in Chapter 8, Unenforceability on Grounds of Public Policy, are not determinative under this Section. See also Comments b and c. The standard under this Section, like that of materiality under § 237, is necessarily a somewhat imprecise and flexible one. It requires that the parts of a pair be of roughly equivalent value to the injured party in terms of his expectation with respect to the total agreed exchange. This is because fairness requires that a party, having received only a fraction of the performance that he expected under a contract, not be asked to pay an identical fraction of the price that he originally promised on the expectation of full performance, unless it appears that the performance that he actually received is worth to him roughly that same fraction of what full performance would have been worth to him. Therefore the mere fact that the subject of the contract is sold by weight or measure and the total price determined by a unit price (e.g., per pound or cubic yard or acre) does not result in agreed equivalents. The injured party will not be required to pay for a part of the performance that he has received if he cannot make full use of that part without the remainder of the performance, as, for example, where a buyer has received a machine but not an attachment necessary for its operation. In deciding whether the injured party can make full use of only part, a court must, of course, take account of the possibility that the remainder of the performance can be easily obtained from some other source, as, for example, where the attachment is available on the market.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.

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

  • In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
    • (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
    • (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
    • (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
    • (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;
    • (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.

 

 

Comment:
a. Nature of significant circumstances. The application of the rules stated in §§ 237 and 238 turns on a standard of materiality that is necessarily imprecise and flexible. (Contrast the situation where the parties have, by their agreement, made an event a condition. See § 226 and Comments a and c thereto and § 229.) The standard of materiality applies to contracts of all types and without regard to whether the whole performance of either party is to be rendered at one time or part performances are to be rendered at different times. See Uniform Commercial Code § 2-612. It also applies to pairs of agreed equivalents under § 240. See Illustration 2. It is to be applied in the light of the facts of each case in such a way as to further the purpose of securing for each party his expectation of an exchange of performances. This Section therefore states circumstances, not rules, which are to be considered in determining whether a particular failure is material. A determination that a failure is not material means only that it does not have the effect of the non-occurrence of a condition under §§ 237 and 238. Even if not material, the failure may be a breach and give rise to a claim for damages for partial breach (§§ 236, 243).
  • Illustrations:
    • 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.
    • 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.
b. Loss of benefit to injured party. Since the purpose of the rules stated in §§ 237 and 238 is to secure the parties' expectation of an exchange of performances, an important circumstance in determining whether a failure is material is the extent to which the injured party will be deprived of the benefit which he reasonably expected from the exchange (Subsection (a)). If the consideration given by either party consists partly of some performance and only partly of a promise (see Comment a to § 232), regard must be had to the entire exchange, including that performance, in applying this criterion. Although the relationship between the monetary loss to the injured party as a result of the failure and the contract price may be significant, no simple rule based on the ratio of the one to the other can be laid down, and here, as elsewhere under this Section, all relevant circumstances must be considered. In construction contracts, for example, defects affecting structural soundness are ordinarily regarded as particularly significant. In the sale of goods a particularly exacting standard has evolved. There it has long been established that, in the absence of a showing of a contrary intention, a buyer is entitled to expect strict performance of the contract, and Uniform Commercial Code § 2-601 carries forward this expectation by allowing the buyer to reject “if the goods or the tender of delivery fail in any respect to conform to the contract.” The Code, however, compensates to some extent for the severity of this standard by extending the seller's right to cure beyond the point when the time for performance has expired in some instances (§ 2-508(2)), by allowing revocation of acceptance only if a nonconformity “substantially impairs” the value of the goods to the buyer (§ 2-608(1)), and by allowing the injured party to treat a nonconformity or default as to one installment under an installment contract as a breach of the whole only if it “substantially impairs” the value of the whole (§ 2-612(3)).
c. Adequacy of compensation for loss. The second circumstance, the extent to which the injured party can be adequately compensated for his loss of benefit (Subsection (b)), is a corollary of the first. Difficulty that he may have in proving with sufficient certainty the amount of that loss will affect the adequacy of compensation. If the failure is a breach, the injured party always has a claim for damages, and the question becomes one of the adequacy of that claim to compensate him for the lost benefit. Where the failure is not a breach, the question becomes one of the adequacy of any claim, such as one in restitution, to which the injured party may be entitled. This is a particularly important circumstance when the party in breach seeks specific performance. Such relief may be granted if damages can adequately compensate the injured party for the defect in performance. See Comment c to § 242.
d. Forfeiture by party who fails. Because a material failure acts as the non-occurrence of a condition, the same risk of forfeiture obtains as in the case of conditions generally if the party who fails to perform or tender has relied substantially on the expectation of the exchange, as through preparation or performance. Therefore a third circumstance is the extent to which the party failing to perform or to make an offer to perform will suffer forfeiture if the failure is treated as material. For this reason a failure is less likely to be regarded as material if it occurs late, after substantial preparation or performance, and more likely to be regarded as material if it occurs early, before such reliance. For the same reason the failure is more likely to be regarded as material if such preparation or performance as has taken place can be returned to and salvaged by the party failing to perform or tender, and less likely to be regarded as material if it cannot. These factors argue against a finding of material failure and in favor of one of substantial performance where a builder has completed performance under a construction contract and, because the building is on the owner's land, can salvage nothing if he is denied recovery of the balance of the price. Even in such a case, however, the potential forfeiture may be mitigated if the builder has a claim in restitution (§§ 370- 77, especially § 374) or if he has already received progress payments under a provision of the contract. The same factors argue for a finding of material failure where a seller tenders goods and can salvage them by resale to others if they are rejected and he is denied recovery of the price. This helps to explain the severity of the rule as applied to the sale of goods. See Comment b. Even in such a case, however, the potential forfeiture may be aggravated if the seller has manufactured the goods specially for the buyer or has spent substantial sums in shipment.
  • Illustrations:
    • 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).
    • 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).
e. Uncertainty. A material failure by one party gives the other party the right to withhold further performance as a means of securing his expectation of an exchange of performances. To the extent that that expectation is already reasonably secure, in spite of the failure, there is less reason to conclude that the failure is material. The likelihood that the failure will be cured is therefore a significant circumstance in determining whether it is material (Subsection (d)). The fact that the injured party already has some security for the other party's performance argues against a determination that the failure is material. So do reasonable assurances of performance given by the other party after his failure. So does a shift in the market that makes performance of the contract more favorable to the other party. On the other hand, defaults by the other party under other contracts or as to other installments under the same contract argue for a determination of materiality. So does such financial weakness of the other party as suggests an inability to cure. This circumstance differs from the notion of reasonable grounds for insecurity (§ 251), in that the former can become relevant only after there has been an actual failure to perform or to tender. On discharge by repudiation, see § 253(2).
  • Illustration:
    • 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).
f. Absence of good faith or fair dealing. A party's adherence to standards of good faith and fair dealing (§ 205) will not prevent his failure to perform a duty from amounting to a breach (§ 236(2)). Nor will his adherence to such standards necessarily prevent his failure from having the effect of the non-occurrence of a condition (§ 237; cf. § 238). 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 is, however, a significant circumstance in determining whether the failure is material (Subsection (e)). In giving weight to this factor courts have often used such less precise terms as “wilful.” Adherence to the standards stated in Subsection (e) is not conclusive, since other circumstances may cause a failure to be material in spite of such adherence. Nor is non-adherence conclusive, and other circumstances may cause a failure not to be material in spite of such non-adherence.
  • Illustrations:
    • 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.
    • 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.

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

n determining the time after which a party's uncured material failure to render or to offer performance discharges the other party's remaining duties to render performance under the rules stated in §§ 237 and 238, the following circumstances are significant:
  • (a) those stated in § 241;
  • (b) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements;
  • (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.

 

 

Comment:
a. Cure. Under §§ 237 and 238, a party's uncured material failure to perform or to offer to perform not only has the effect of suspending the other party's duties (§ 225(1)) but, when it is too late for the performance or the offer to perform to occur, the failure also has the effect of discharging those duties (§ 225(2)). Ordinarily there is some period of time between suspension and discharge, and during this period a party may cure his failure. Even then, since any breach gives rise to a claim, a party who has cured a material breach has still committed a breach, by his delay, for which he is liable in damages. Furthermore, in some instances timely performance is so essential that any delay immediately results in discharge and there is no period of time during which the injured party's duties are merely suspended and the other party can cure his failure.
b. Significant circumstances. This Section states circumstances which are to be considered in determining whether there is still time to cure a particular failure, or whether the period of time for discharge has expired. They are similar to the circumstances stated in the preceding section. The importance of delay to the injured party will depend on the extent to which it will deprive him of the benefit which he reasonably expected (§ 241(a)) and on the extent to which he can be adequately compensated (§ 241(b)). The extent of the forfeiture by the party failing to perform or to offer to perform (§ 241(c)) is also significant in determining the importance of delay. The likelihood that the injured party's withholding of performance will induce the other party to cure his failure is particularly important (§ 241(d)), because the very reason for suspending rather than immediately discharging the injured party's duties is that this will induce cure. The reasonableness of the injured party's conduct in communicating his grievances and in seeking satisfaction is a factor to be considered in this connection. Where performance is to extend over a period of time, as where delivery of goods is to be in installments, so that a continuing relationship between the parties is contemplated, the injured party may be expected to give more opportunity for cure than in the case of an isolated exchange. On discharge by repudiation, see § 253(2). Finally, the nature of the behavior of the party failing to perform or to offer to perform may be considered here as under the preceding section (§ 241(e)).
  • Illustration:
    • 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.
c. Substitute arrangements. It is often said that in commercial transactions, notably those for the sale of goods, prompt performance by a party is essential if he is to be allowed to require the other to perform or, as it is sometimes put, “time is of the essence.” The importance of prompt delivery by a seller of goods generally derives from the circumstance that goods, as contrasted for example with land, are particularly likely to be subject to rapid fluctuations in market price. Therefore, even a relatively short delay in a rising market may adversely affect the buyer by causing a sharp increase in the cost of “cover.” See Uniform Commercial Code §§ 2-712, 2-713. A less rigid standard applies to contracts for the sale of goods to be delivered in installments or to be specially manufactured for the buyer. On the other hand, considerable delay does not preclude enforcement of a contract for the sale of land if damages are adequate to compensate for the delay and there are no special circumstances indicating that prompt performance was essential and no express provision requiring such performance. But these are all merely particular applications of a more general principle. Subsection (b) states that principle. Under any contract, the extent to which it reasonably appears to the injured party that delay may prevent or hinder him from making reasonable substitute arrangements is a consideration in determining the effect of delay. Cf. § 241(a), (b). As in the case of § 241 (see Comment c), a party in breach who seeks specific performance may be granted relief with compensation for the delay, in circumstances where he would have no claim for damages.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
d. Effect of agreement. The agreement of the parties often contains a provision for the time of performance or tender. It may simply provide for performance on a stated date. In that event, a material breach on that date entitles the injured party to withhold his performance and gives him a claim for damages for delay, but it does not of itself discharge the other party's remaining duties. Only if the circumstances, viewed as of the time of the breach, indicate that performance or tender on that day is of genuine importance are the injured party's remaining duties discharged immediately, with no period of time during which they are merely suspended. It is, of course, open to the parties to make performance or tender by a stated date a condition by their agreement, in which event, absent excuse (see Comment b to § 225 and Comment c to § 229), delay beyond that date results in discharge (§ 225(2)). Such stock phrases as “time is of the essence” do not necessarily have this effect, although under Subsection (c) they are to be considered along with other circumstances in determining the effect of delay.
  • Illustrations:
    • 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.
    • 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.
    • 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.
e. Excuse and reinstatement. Just as a party may under § 84 promise to perform in spite of the complete non-occurrence of a condition, he may under that section promise to perform in spite of a delay in its occurrence. If he places no limit on the delay, his power to impose a time limit by later notification of the other party is subject to the rules on reinstatement stated in § 84(2).

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

  • (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.
  • (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.
  • (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.
  • (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.

 

Comment:
a. Promises exchanged in an expectation of an exchange of performances. Under § 236, a claim for damages for total breach is one for damages based on all of the injured party's remaining rights to performance while a claim for damages for partial breach is one that is based on only part of those rights. No precise general rule can be stated for determining in all cases when a breach gives rise to a claim for damages for total breach and when it gives rise to a claim merely for damages for partial breach. Subsection (1), however, states a rule for the most significant type of case—the case in which performances are to be exchanged under an exchange of promises, and the breach occurs before the injured party has fully performed his duties with respect to the expected exchange. The breach, if it is material (§ 241), will operate as the non-occurrence of a condition of those remaining duties (§ 237). This will at least justify the injured party in suspending his performance (§ 225(1)), and will, if the breach is not cured in time (§ 242), discharge his remaining duties of performance (§ 225(2)). Under the rule stated in Subsection (1), the injured party has a claim for damages for total breach if, but only if, those remaining duties are discharged. See Comment b to § 236 and Illustration 2 to § 237. (The injured party also has a claim for damages for total breach as the result of a material breach in, for example, Illustrations 4, 5, and 6 to § 237 and Illustrations 2 and 6 to § 240). There is, of course, an exception where the injured party has already, at the time of the breach, come under a duty to render performance of an agreed equivalent under the rule stated in § 240. Such a duty is not discharged, even if there is a material breach, and its survival does not prevent the injured party from claiming damages for total breach under Subsection (1). In contrast to the situation where there is a repudiation (see Comment b), the injured party has a choice in the situation contemplated in Subsection (1). If, in spite of the breach, he wishes to await performance by the party in breach and to have merely a claim for damages for partial breach rather than for total breach, he can excuse the non-occurrence of the condition of his remaining duties (§ 237) by promising to perform them in spite of its non-occurrence (§ 84). His remaining duties are then not discharged, and the rule stated in Subsection (1) does not apply. The injured party need not do this expressly (see Comment e to § 84), but may do so by his actions in the course of performance. See §§ 246, 247.
  • Illustrations:
    • 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.
    • 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.
b. Effect of repudiation. Under the rule stated in Subsection (2), if a repudiation (§ 250) accompanies or follows a breach by non-performance, the injured party generally has a claim for damages for total breach. A repudiation does not, however, have this effect in those circumstances in which, under the rule stated in Subsection (3), nothing less than a breach as to the whole gives rise to such a claim (see Comment c and Illustrations 4 and 5). A repudiation together with a breach by non-performance, therefore, has this effect in all cases in which a repudiation alone would give rise to a claim for total breach (§ 253) and in some additional cases (see Illustrations 3 and 8). An injured party who has a claim for damages for total breach as a result of a repudiation, and who asserts a claim merely for damages for partial breach, runs the risk that if he prevails he will be barred under the doctrine of merger from further recovery, even in the event of a subsequent breach, because he has “split a cause of action.” See Restatement, Second, Judgments §§ 24-26. His position differs from that of the injured party under the rule stated in Subsection (1), who can, by promising to perform in spite of a breach (§ 84), prevent the breach from discharging his remaining duties of performance, avoid its giving rise to a claim for damages for total breach at all, and thereby treat it as giving rise to a claim merely for damages for partial breach (see Comment a). Where a repudiation accompanies or follows a breach that would, if the injured party so chose, give rise to a claim for damages for total breach under Subsection (1), both Subsections (1) and (2) apply. In that case, the injured party cannot avoid the consequence described above of having a claim for damages for total breach under the rule stated in Subsection (2). Even under the rule stated in Subsection (2), however, the injured party can assert a claim for damages for a partial breach without prejudice to a claim for damages arising out of a subsequent breach if he and the repudiator agree that the latter's performance under the contract is to be continued. Furthermore, he is not barred from claiming specific relief under the contract merely because he has a claim for damages for total breach (see Comment a to § 359). If the repudiator nullifies his repudiation (§ 256(1)), the injured party still has a claim for damages for the breach by nonperformance but it may then be a claim merely for damages for partial breach (see Comment a to § 256).
  • Illustration:
    • 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.
c. Duties on one side. The rule stated in Subsection (3) applies only where all the remaining duties at the time of the breach are those of the party in breach. It therefore applies where the parties have exchanged promise for performance (§ 72), and where the parties have exchanged promise for promise (§ 74) and the injured party has fully performed. It is well established that if those duties of the party in breach at the time of the breach are simply to pay money in installments, not related to one another in some way, as by the requirement of the occurrence of a condition with respect to more than one of them, then a breach as to any number less than the whole of such installments gives rise to a claim merely for damages for partial breach. Whether there is a relationship between installments or other acts depends on the extent to which, in the circumstances, a breach as to less than the whole of such installments or acts can substantially affect the injured party's expectation under the contract.
d. Avoiding harsh results of limitations. Dissatisfaction with the rule stated in Subsection (3) often manifests itself by the inclusion in the agreement of an acceleration clause under which the remaining installments become due, either automatically or at the option of the injured party, on a breach as to one installment, so that such non-performance gives rise to a claim for damages for total breach. Even when the injured party has no claim for damages for total breach, he may be entitled to equitable relief, a declaratory judgment, an installment judgment, or restitution (see Comment b to § 359), to the extent that these remedies are permitted. The degree to which the limitation might yield on a showing of manifest injustice, as where the refusal to pay is not in good faith or where fraud on creditors is involved, is unclear. Problems of assuring performance of such obligations to pay in installments on the debtor's death, dissolution, or bankruptcy arise even where no breach by non-performance has occurred, and are not dealt with in this Restatement. See Comment c to § 250.
  • Illustrations:
    • 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.
    • 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.
e. General criterion. The rules stated in Subsections (1), (2) and (3) cover most of the significant cases. Subsection (4) states a general rule for residual cases. Under that rule the criterion is whether the breach so substantially impairs the value of the contract to the injured party at the time of the breach that it is just to allow him to recover damages based on all his remaining rights to performance. This determination is to be made in the light of all the circumstances, taking account of the difficulty of calculating damages for total breach and of any uncertainties that could be avoided if the injured party were given a claim merely for damages for partial breach. The criterion is essentially that of Uniform Commercial Code § 2-610 and, here as there, “The most useful test of substantial value is to determine whether material inconvenience or injustice will result if the aggrieved party is forced to wait …” (Comment 3). Although the considerations listed in §§ 241 and 242 are intended for use in determining whether the injured party is discharged, not in determining whether he has a claim for damages for total breach, some of them are relevant to this latter determination. Among these are the extent to which the injured party will be deprived of the benefit that he reasonably expected (§ 241(a)), the likelihood that the party in breach will cure his breach (§ 241(d)), the extent to which the behavior of the party in breach comports with standards of good faith and fair dealing (§ 241(e)), and the extent to which further delay will prevent or hinder the injured party in making reasonable substitute arrangements (§ 242(b)).
  • Illustrations:
    • 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.
    • 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.
    • 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.

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

U.C.C. § 2-507. Effect of Seller's Tender; Delivery on Condition
(1) Tender of delivery is a condition to the buyer's duty to accept the goods and, unless otherwise agreed, to his duty to pay for them. Tender entitles the seller to acceptance of the goods and to payment according to the contract.
(2) Where payment is due and demanded on the delivery to the buyer of goods or documents of title, his right as against the seller to retain or dispose of them is conditional upon his making the payment due.

1. Subsection (1) continues the policies of the prior uniform statutory provisions with respect to tender and delivery by the seller. Under this Article the same rules in these matters are applied to present sales and to contracts for sale. But the provisions of this subsection must be read within the framework of the other sections of this Article which bear upon the question of delivery and payment.
2. The “unless otherwise agreed” provision of subsection (1) is directed primarily to cases in which payment in advance has been promised or a letter of credit term has been included. Payment “according to the contract” contemplates immediate payment, payment at the end of an agreed credit term, payment by a time acceptance or the like. Under this Act, “contract” means the total obligation in law which results from the parties' agreement including the effect of this Article. In this context, therefore, there must be considered the effect in law of such provisions as those on means and manner of payment and on failure of agreed means and manner of payment.
3. Subsection (2) deals with the effect of a conditional delivery by the seller and in such a situation makes the buyer's “right as against the seller” conditional upon payment. These words are used as words of limitation to conform with the policy set forth in the bona fide purchase sections of this Article. Should the seller after making such a conditional delivery fail to follow up his rights, the condition is waived. This subsection (2) codifies the cash seller's right of reclamation which is in the nature of a lien. There is no specific time limit for a cash seller to exercise the right of reclamation. However, the right will be defeated by delay causing prejudice to the buyer, waiver, estoppel, or ratification of the buyer's right to retain possession. Common law rules and precedents governing such principles are applicable (Section 1-103). If third parties are involved, Section 2-403(1) protects good faith purchasers.

11.2.10 UCC 2-511 11.2.10 UCC 2-511

§ 2-511. Tender of Payment by Buyer; Payment by Check.

(1) Unless otherwise agreed tender of payment is a condition to the seller's duty to tender and complete any delivery.
(2) Tender of payment is sufficient when made by any means or in any manner current in the ordinary course of business unless the seller demands payment in legal tender and gives any extension of time reasonably necessary to procure it.
(3) Subject to the provisions of this Act on the effect of an instrument on an obligation (Section 3-310), payment by check is conditional and is defeated as between the parties by dishonor of the check on due presentment.
1. The requirement of payment against delivery in subsection (1) is applicable to noncommercial sales generally and to ordinary sales at retail although it has no application to the great body of commercial contracts which carry credit terms. Subsection (1) applies also to documentary contracts in general and to contracts which look to shipment by the seller but contain no term on time and manner of payment, in which situations the payment may, in proper case, be demanded against delivery of appropriate documents.
In the case of specific transactions such as C.O.D. sales or agreements providing for payment against documents, the provisions of this subsection must be considered in conjunction with the special sections of the Article dealing with such terms. The provision that tender of payment is a condition to the seller's duty to tender and complete “any delivery” integrates this section with the language and policy of the section on delivery in several lots which call for separate payment. Finally, attention should be directed to the provision on right to adequate assurance of performance which recognizes, even before the time for tender, an obligation on the buyer not to impair the seller's expectation of receiving payment in due course.
2. Unless there is agreement otherwise the concurrence of the conditions as to tender of payment and tender of delivery requires their performance at a single place or time. This Article determines that place and time by determining in various other sections the place and time for tender of delivery under various circumstances and in particular types of transactions. The sections dealing with time and place of delivery together with the section on right to inspection of goods answer the subsidiary question as to when payment may be demanded before inspection by the buyer.
3. The essence of the principle involved in subsection (2) is avoidance of commercial surprise at the time of performance. The section on substituted performance covers the peculiar case in which legal tender is not available to the commercial community.
4. Subsection (3) is concerned with the rights and obligations as between the parties to a sales transaction when payment is made by check. This Article recognizes that the taking of a seemingly solvent party's check is commercially normal and proper and, if due diligence is exercised in collection, is not to be penalized in any way. The conditional character of the payment under this section refers only to the effect of the transaction “as between the parties” thereto and does not purport to cut into the law of “absolute” and “conditional” payment as applied to such other problems as the discharge of sureties or the responsibilities of a drawee bank which is at the same time an agent for collection.
The phrase “by check” includes not only the buyer's own but any check which does not effect a discharge under Article 3 (Section 3-802). Similarly the reason of this subsection should apply and the same result should be reached where the buyer “pays” by sight draft on a commercial firm which is financing him.
5. Under subsection (3) payment by check is defeated if it is not honored upon due presentment. This corresponds to the provisions of article on Commercial Paper. (Section 3-802). But if the seller procures certification of the check instead of cashing it, the buyer is discharged. (Section 3-411).
6. Where the instrument offered by the buyer is not a payment but a credit instrument such as a note or a check post-dated by even one day, the seller's acceptance of the instrument insofar as third parties are concerned, amounts to a delivery on credit and his remedies are set forth in the section on buyer's insolvency. As between the buyer and the seller, however, the matter turns on the present subsection and the section on conditional delivery and subsequent dishonor of the instrument gives the seller rights on it as well as for breach of the contract for sale.

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)

230 N.Y. 239
129 N.E. 889

JACOB & YOUNGS, Inc.,

v.

KENT.

Court of Appeals of New York.
Jan. 25, 1921.

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.

11.2.13 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.

PRESIDING JUSTICE KNECHT

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

  • A repudiation is
    • (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
    • (b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
  •  
Comment:
a. Consequences of repudiation. A statement by a party to the other that he will not or cannot perform without a breach, or a voluntary affirmative act that renders him unable or apparently unable to perform without a breach may impair the value of the contract to the other party. It may have several consequences under this Restatement. If it accompanies a breach by non-performance that would otherwise give rise to only a claim for damages for partial breach, it may give rise to a claim for damages for total breach instead (§ 243). Even if it occurs before any breach by non-performance, it may give rise to a claim for damages for total breach (§ 253(1)), discharge the other party's duties (§ 253(2)), or excuse the non-occurrence of a condition (§ 255).
b. Nature of statement. In order to constitute a repudiation, a party's language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform. Mere expression of doubt as to his willingness or ability to perform is not enough to constitute a repudiation, although such an expression may give an obligee reasonable grounds to believe that the obligor will commit a serious breach and may ultimately result in a repudiation under the rule stated in § 251. However, language that under a fair 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. Language that is accompanied by a breach by non-performance may amount to a repudiation even though, standing alone, it would not be sufficiently positive. See § 243(2). The statement must be made to an obligee under the contract, including a third party beneficiary or an assignee.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
c. Nature of act. In order to constitute a repudiation, a party's act must be both voluntary and affirmative, and must make it actually or apparently impossible for him to perform. An act that falls short of these requirements may, however, give reasonable grounds to believe that the obligor will commit a serious breach for the purposes of the rule stated in § 251. The effect of bankruptcy is governed in large part by federal law. In liquidation cases, for example, Bankruptcy Reform Act § 365(a), (d) and (e) gives the trustee the power to assume or reject an executory contract within a statutory period, and the obligee must give him the time to exercise this power. A contract not assumed during this period is deemed to be rejected. Under Bankruptcy Reform Act § 365(g)(1), notwithstanding state law, the trustee's rejection of a contract “constitutes a breach of such contract … immediately before the date of the filing of the petition ….” The rules stated in this Restatement apply to the extent that they are consistent with federal bankruptcy law.
  • Illustrations:
    • 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.
    • 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.
    • 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.
d. Gravity of threatened breach. In order for a statement or an act to be a repudiation, the threatened breach must be of sufficient gravity that, if the breach actually occurred, it would of itself give the obligee a claim for damages for total breach under § 243(1). Generally, a party acts at his peril if, insisting on what he mistakenly believes to be his rights, he refuses to perform his duty. His statement is a repudiation if the threatened breach would, without more, have given the injured party a claim for damages for total breach. Modern procedural devices, such as the declaratory judgment, may be used to mitigate the harsh results that might otherwise result from this rule. Furthermore, if the threatened breach would not itself have given the injured party a claim for damages for total breach, the statement or voluntary act that threatens it is not a repudiation. But where a party wrongfully states that he will not perform at all unless the other party consents to a modification of his contract rights, the statement is a repudiation even though the concession that he seeks is a minor one, because the breach that he threatens in order to exact it is a complete refusal of performance.
  • Illustrations:
    • 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.
    • 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.

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

  • (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.
  • (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.
Comment:
a. Rationale. Ordinarily an obligee has no right to demand reassurance by the obligor that the latter will perform when his performance is due. However, a contract “imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired.” Uniform Commercial Code § 2-609(1). When, therefore, an obligee reasonably believes that the obligor will commit a breach by non-performance that would of itself give him a claim for damages for total breach (§ 243), he may, under the rule stated in this Section, be entitled to demand assurance of performance. The rule is a generalization, applicable without regard to the subject matter of the contract, from that of Uniform Commercial Code § 2-609. The latter applies only to contracts for the sale of goods and gives a party a right to adequate assurance of performance where “reasonable grounds for insecurity arise with respect to the performance” of the other party. Both rules rest on the principle that the parties to a contract look to actual performance “and that a continuing sense of reliance and security that the promised performance will be forthcoming when due, is an important feature of the bargain.” Comment 1 to Uniform Commercial Code § 2-609. This principle is closely related to the duty of good faith and fair dealing in the performance of the contract (§ 205). See also Comment b to § 141. The rule stated in this Section may be modified by agreement of the parties, and where they have done so their rights depend on the application of the rules on interpretation stated in Chapter 9, The Scope of Contractual Obligations.
b. Relation to other rules. An obligee who believes, for whatever reason, that the obligor will not or cannot perform without a breach, is always free to act on that belief. If he is not himself under a duty to perform before the obligor, he may simply await the obligor's performance and, if his belief is confirmed, he will have a claim for damages for breach by non-performance. If he can prove that his belief would have been confirmed, he is at least shielded from liability even if he has failed to give a performance that is due before that of the obligor or has, by making alternative arrangements, done an act that amounts to a repudiation. For example, under § 254, the obligee's duty to pay damages for total breach by repudiation is discharged if the obligor himself would not or could not have performed when his performance was due. If, however, the obligee's belief is incorrect, his own failure to perform or his making of alternate arrangements may subject him to a claim for damages for total breach. This Section affords him an opportunity, in appropriate cases, to demand assurance of due performance and thereby avoid the uncertainties that would otherwise inhere in acting on his belief. If it is then reasonable for the obligee to suspend his own performance while he awaits assurance by the obligor, he may do so under Subsection (1). Under the special rule stated in § 252, the obligee may always suspend his own performance where his belief that the obligor will commit a breach is based on the obligor's insolvency. If the obligee does not, within a reasonable time, obtain adequate assurance of due performance, he may under Subsection (2) treat the obligor's failure to provide such an assurance as a repudiation. His right to do so is, however, subject to the rule stated in § 256 under which the manifestation of doubt or the apparent inability, on which the obligee bases his belief that the obligor will commit a breach, may be nullified. In contrast to the situation where the obligor has actually repudiated under § 250, the obligee may choose not to treat the failure to provide assurances as a repudiation and may continue to perform without affecting his right to recover damages for subsequent loss that he could have avoided by so treating it. See Comment a to § 257 and § 350. If he chooses to treat the obligor's failure as a repudiation, it may have any of the three effects that any other repudiation may have: it may give him a claim for damages for total breach (§ 253(1)), it may discharge his own remaining duties of performance (§ 253(2)), and it may excuse the non-occurrence of a condition of the other party's duty (§ 255). The effect on the obligee's remaining duties of performance of prospective non-performance by the obligor that would not be a breach because it would be justified on the ground of impracticability of performance is dealt with in § 268.
  • Illustrations:
    • 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).
    • 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).
c. Reasonable grounds for belief. Whether “reasonable grounds” have arisen for an obligee's belief that there will be a breach must be determined in the light of all the circumstances of the particular case. The grounds for his belief must have arisen after the time when the contract was made and cannot be based on facts known to him at that time. Nor, since the grounds must be reasonable, can they be based on events that occurred after that time but as to which he took the risk when he made the contract. But minor breaches may give reasonable grounds for a belief that there will be more serious breaches, and the mere failure of the obligee to press a claim for damages for those minor breaches will not preclude him from basing a demand for assurances on them. Compare § 241(d), Comment e to that section, and Comment b to § 242. Even circumstances that do not relate to the particular contract, such as defaults under other contracts, may give reasonable grounds for such a belief. See Comment a to § 252. Conduct by a party that indicates his doubt as to his willingness or ability to perform but that is not sufficiently positive to amount to a repudiation (see Comment b to § 250), may give reasonable grounds for such a belief. And events that indicate a party's apparent inability, but do not amount to a repudiation because they are not voluntary acts, may also give reasonable grounds for such a belief. One important application of the rule stated in this Section occurs when a party who has contracted to buy specific property, land or goods, discovers that the seller has neither present ownership of the property nor a right to become or at least a reasonable expectation of becoming the owner in time to perform. Another important application of the rule occurs when an obligor who is allowed a period of time within which to perform makes an offer of defective performance. It may still be possible for him, if the offer is refused, to make an offer of conforming performance within the period allowed. Nevertheless, the offer of defective performance may give the obligee reasonable grounds to believe that the obligor will commit a breach under this Section. A third important application of the rule occurs when a party becomes insolvent. The effect of insolvency will vary according to the nature of the obligor's duty. If, for example, it is merely to perform personal services, the fact of insolvency alone may not give reasonable grounds to believe that the obligor will commit a breach, but if it is to pay for goods on credit it will. See Uniform Commercial Code § 2-702(1). A special rule on insolvency is stated in § 252. In any case, in order for this Section to apply, the breach that the obligee believes the obligor will commit must be a breach by non-performance that would so substantially impair the value of the contract to the obligee that it would of itself, unaccompanied by a repudiation, give him a claim for damages for total breach under § 243.
  • Illustrations:
    • 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.
    • 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.
    • 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.
d. Nature of demand. A party who demands assurances must do so in accordance with his duty of good faith and fair dealing in the enforcement of the contract (§ 205). Whether a particular demand for assurance conforms to that duty will depend on the circumstances. The demand need not be in writing. Although a written demand is usually preferable to an oral one, if time is of particular importance the additional time required for a written demand might necessitate an oral one. Compare Uniform Commercial Code § 2-609(1), which controls in the case of a sale of goods and which requires a demand “in writing.” Harassment by means of frequent unjustified demands may amount to a violation of the duty of good faith and fair dealing.
  • Illustration:
    • 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.
e. Nature and time of assurance. Whether an assurance of due performance is “adequate” depends on what it is reasonable to require in a particular case taking account of the circumstances of that case. The relationship between the parties, any prior dealings that they have had, the reputation of the party whose performance has been called into question, the nature of the grounds for insecurity, and the time within which the assurance must be furnished are all relevant factors. (If the obligor's insolvency constitutes the grounds for the obligee's insecurity, the special rule stated in § 252 empowers him to suspend performance until he receives assurance in the form of actual performance, an offer of performance, or reasonable security.) What is a “reasonable time” within which to give assurance under Subsection (2) will also depend on the particular circumstances. Like the demand, the assurance is subject to the general requirement of good faith and fair dealing in the enforcement of the contract (§ 205; see Comment d).
  • Illustrations:
    • 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.
    • 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.

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

  • (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.
  • (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.
Comment:
a. Breach. An obligee under a contract is ordinarily entitled to the protection of his expectation that the obligor will perform. For this reason, a repudiation by the obligor under § 250 or § 251 generally gives rise to a claim for damages for total breach even though it is not accompanied or preceded by a breach by non-performance. Such a repudiation is sometimes elliptically called an “anticipatory breach,” meaning a breach by anticipatory repudiation, because it occurs before there is any breach by non-performance. If there is a breach by non-performance, in addition to the repudiation under § 250 or § 251 the breach is not one by repudiation alone and the rules stated in § 243 rather than those stated in Subsection (1) apply. If, under § 251, it was a breach by non-performance that gave the obligee grounds to believe that the obligor would commit a more serious breach, the obligor's failure to give assurances cannot give rise to a breach by repudiation alone. The measure of damages in the case of a claim under this Section is governed by the rules stated in Topic 2 of Chapter 16.
  • Illustrations:
    • 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.
    • 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.
b. Discharge. Under Subsection (1) a breach by repudiation alone can only give rise to a claim for total breach, although a breach by non-performance, even if coupled with a repudiation, can generally give rise to either a claim for partial breach or to one for total breach (§§ 236, 237). Of course, in appropriate circumstances, the injured party can, after a breach by repudiation alone, pursue alternative relief by seeking, for example, a decree of specific performance or an injunction. See Topic 3 of Chapter 16. Nevertheless, the rule stated in Subsection (1) is one of those rules that are peculiar to breach by repudiation alone and differ from those applicable to a breach by non-performance. (Another such rule is that a breach by repudiation alone can be totally nullified by the party in breach (§ 257), while a breach by non-performance, whether coupled with a repudiation or not, cannot be.) Subsection (2) states a corollary of this rule that a breach by repudiation always gives rise to a claim for damages for total breach: where performances are to be exchanged under an exchange of promises, one party's repudiation discharges any remaining duties of performance of the other party with respect to the expected exchange.
c. Scope. If an obligor repudiates under § 250 or § 251 before he has received all of the agreed exchange for his promise, the repudiation alone gives rise to a claim for damages for total breach under Subsection (1). The most important example of such a case occurs when performances are to be exchanged under an exchange of promises and one party repudiates a duty with respect to the expected exchange before the other party has fully performed that exchange. See Illustrations 1 and 2. (A repudiation of a duty whose performance is not part of the expected exchange, and for which there is therefore no agreed exchange, does not come within the rule stated in Subsection (1). See, e.g., Illustration 3 to § 232.) Another example occurs when one party repudiates a duty under an option contract before the other party has exercised the option by giving the agreed exchange. See Illustration 3. However, it is one of the established limits on the doctrine of “anticipatory breach” that an obligor's repudiation alone, whether under § 250 or § 251, gives rise to no claim for damages at all if he has already received all of the agreed exchange for it. The rule stated in Subsection (1) does not, therefore, allow a claim for damages for total breach in such a case.
  • Illustrations:
    • 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.
    • 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.
    • 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.
    • 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.
d. Avoiding harsh results of limitation. The limitation described in Comment c sometimes avoids difficult problems of forecasting damages and is supported by the clear weight of authority. It has, however, been subjected to considerable criticism, and instances of its actual application are infrequent. Compare, for example, Illustration 3 with Illustration 4. A court can often avoid harsh results by making available other types of relief, such as a declaratory judgment or restitution. See §§ 345, 373 and Comment a to § 373. Insurance contracts are subject to special considerations which may make it appropriate to grant equitable relief in, for example, a suit for reinstatement. The degree to which the limitation might yield on a showing of manifest injustice, as where the refusal to pay is not in good faith, is unclear. Compare Comment d to § 243. Furthermore, if the repudiation is coupled with a breach by non-performance that would otherwise give rise to a claim for damages for only partial breach, it may give rise instead to a claim for damages for total breach, but whether it does so is governed by § 243 and not by this Section.

11.3.5 Restatement (Second) of Contracts § 256 11.3.5 Restatement (Second) of Contracts § 256

§ 256 Nullification of Repudiation or Basis for Repudiation

  • (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.
  • (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.
Comment:
a. Effect of nullification. A repudiation may have three consequences: it may give rise to a claim for damages for total breach (§ 253(1)(1)), discharge duties (§ 253(2)(2)), and excuse the non-occurrence of a condition (§ 255). A party's manifestation of doubt or apparent inability may entitle the other party to demand adequate assurance of due performance and to treat a failure to give such assurance as a repudiation under the rule stated in § 251. If, however, the effect of the statement or other events constituting the repudiation under § 250 or the basis for the repudiation under § 251 is nullified as provided in this Section, none of these consequences follows. Such a nullification does not, of course, alter the consequences of any breach by non-performance that may have taken place. If, for example, a repudiation accompanies a breach by non-performance, nullification of the repudiation leaves the injured party a claim for damages for the breach, although the claim may no longer be one for damages for total breach (see Comment b to § 243). If the repudiation is wholly anticipatory, nullification leaves the injured party with no claim at all. Compare the effect of events subsequent to a total breach by repudiation (§ 254).
  • Illustrations:
    • 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).
    • 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.
b. Manner of retraction. It is not necessary for the repudiator to use words in order to retract his statement. Conduct, such as an offer of performance, may be adequate to convey the idea of retraction to the injured party.
c. Time for nullification. Once the injured party has materially changed his position in reliance on the repudiation, nullification would clearly be unjust. In the interest of certainty, however, it is undesirable to make the injured party's rights turn exclusively on such a vague criterion, and he may therefore prevent subsequent nullification by indicating to the other party that he considers the repudiation final. It is, for example, enough under Uniform Commercial Code § 2-612 that “the aggrieved party has since the repudiation cancelled or materially changed his position or otherwise indicated that he considers the repudiation final.” Cancellation of the contract or the commencement of an action claiming damages for total breach would be sufficient. (See Comment 1 to Uniform Commercial Code § 2-611.)
  • Illustrations:
    • 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).
    • 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).
    • 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.

11.3.6 UCC 2-609 11.3.6 UCC 2-609

Right to Adequate Assurance of Performance

1) A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.
2) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.
3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance.
4) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.

 

 

OFFICIAL COMMENT
Prior Uniform Statutory Provision: See Sections 53, 54(1)(b), 55 and 63(2), Uniform Sales Act.
Purposes:
1. The section rests on the recognition of the fact that the essential purpose of a contract between commercial men is actual performance and they do not bargain merely for a promise, or for a promise plus the right to win a lawsuit and that a continuing sense of reliance and security that the promised performance will be forthcoming when due, is an important feature of the bargain. If either the willingness or the ability of a party to perform declines materially between the time of contracting and the time for performance, the other party is threatened with the loss of a substantial part of what he has bargained for. A seller needs protection not merely against having to deliver on credit to a shaky buyer, but also against having to procure and manufacture the goods, perhaps turning down other customers. Once he has been given reason to believe that the buyer's performance has become uncertain, it is an undue hardship to force him to continue his own performance. Similarly, a buyer who believes that the seller's deliveries have become uncertain cannot safely wait for the due date of performance when he has been buying to assure himself of materials for his current manufacturing or to replenish his stock of merchandise.
2. Three measures have been adopted to meet the needs of commercial men in such situations. First, the aggrieved party is permitted to suspend his own performance and any preparation therefor, with excuse for any resulting necessary delay, until the situation has been clarified. “Suspend performance” under this section means to hold up performance pending the outcome of the demand, and includes also the holding up of any preparatory action. This is the same principle which governs the ancient law of stoppage and seller's lien, and also of excuse of a buyer from prepayment if the seller's actions manifest that he cannot or will not perform. (Original Act, Section 63(2).)
Secondly, the aggrieved party is given the right to require adequate assurance that the other party's performance will be duly forthcoming. This principle is reflected in the familiar clauses permitting the seller to curtail deliveries if the buyer's credit becomes impaired, which when held within the limits of reasonableness and good faith actually express no more than the fair business meaning of any commercial contract.
Third, and finally, this section provides the means by which the aggrieved party may treat the contract as broken if his reasonable grounds for insecurity are not cleared up within a reasonable time. This is the principle underlying the law of anticipatory breach, whether by way of defective part performance or by repudiation. The present section merges these three principles of law and commercial practice into a single theory of general application to all sales agreements looking to future performance.
3. Subsection (2) of the present section requires that “reasonable” grounds and “adequate” assurance as used in subsection (1) be defined by commercial rather than legal standards. The express reference to commercial standards carries no connotation that the obligation of good faith is not equally applicable here.
Under commercial standards and in accord with commercial practice, a ground for insecurity need not arise from or be directly related to the contract in question. The law as to “dependence” or “independence” of promises within a single contract does not control the application of the present section.
Thus a buyer who falls behind in “his account” with the seller, even though the items involved have to do with separate and legally distinct contracts, impairs the seller's expectation of due performance. Again, under the same test, a buyer who requires precision parts which he intends to use immediately upon delivery, may have reasonable grounds for insecurity if he discovers that his seller is making defective deliveries of such parts to other buyers with similar needs. Thus, too, in a situation such as arose in Jay Dreher Corporation v. Delco Appliance Corporation, 93 F.2d 275 (C.C.A.2, 1937), where a manufacturer gave a dealer an exclusive franchise for the sale of his product but on two or three occasions breached the exclusive dealing clause, although there was no default in orders, deliveries or payments under the separate sales contract between the parties, the aggrieved dealer would be entitled to suspend his performance of the contract for sale under the present section and to demand assurance that the exclusive dealing contract would be lived up to. There is no need for an explicit clause tying the exclusive franchise into the contract for the sale of goods since the situation itself ties the agreements together.
The nature of the sales contract enters also into the question of reasonableness. For example, a report from an apparently trustworthy source that the seller had shipped defective goods or was planning to ship them would normally give the buyer reasonable grounds for insecurity. But when the buyer has assumed the risk of payment before inspection of the goods, as in a sales contract on C.I.F. or similar cash against documents terms, that risk is not to be evaded by a demand for assurance. Therefore no ground for insecurity would exist under this section unless the report went to a ground which would excuse payment by the buyer.
4. What constitutes “adequate” assurance of due performance is subject to the same test of factual conditions. For example, where the buyer can make use of a defective delivery, a mere promise by a seller of good repute that he is giving the matter his attention and that the defect will not be repeated, is normally sufficient. Under the same circumstances, however, a similar statement by a known corner-cutter might well be considered insufficient without the posting of a guaranty or, if so demanded by the buyer, a speedy replacement of the delivery involved. By the same token where a delivery has defects, even though easily curable, which interfere with easy use by the buyer, no verbal assurance can be deemed adequate which is not accompanied by replacement, repair, money-allowance, or other commercially reasonable cure.
A fact situation such as arose in Corn Products Refining Co. v. Fasola, 94 N.J.L. 181, 109 A. 505 (1920) offers illustration both of reasonable grounds for insecurity and “adequate” assurance. In that case a contract for the sale of oils on 30 days' credit, 2% off for payment within 10 days, provided that credit was to be extended to the buyer only if his financial responsibility was satisfactory to the seller. The buyer had been in the habit of taking advantage of the discount but at the same time that he failed to make his customary 10 day payment, the seller heard rumors, in fact false, that the buyer's financial condition was shaky. Thereupon, the seller demanded cash before shipment or security satisfactory to him. The buyer sent a good credit report from his banker, expressed willingness to make payments when due on the 30 day terms and insisted on further deliveries under the contract. Under this Article the rumors, although false, were enough to make the buyer's financial condition “unsatisfactory” to the seller under the contract clause. Moreover, the buyer's practice of taking the cash discounts is enough, apart from the contract clause, to lay a commercial foundation for suspicion when the practice is suddenly stopped. These matters, however, go only to the justification of the seller's demand for security, or his “reasonable grounds for insecurity”.
The adequacy of the assurance given is not measured as in the type of “satisfaction” situation affected with intangibles, such as in personal service cases, cases involving a third party's judgment as final, or cases in which the whole contract is dependent on one party's satisfaction, as in a sale on approval. Here, the seller must exercise good faith and observe commercial standards. This Article thus approves the statement of the court in James B. Berry's Sons Co. of Illinois v. Monark Gasoline & Oil Co., Inc., 32 F.2d 74 (C.C.A.8, 1929), that the seller's satisfaction under such a clause must be based upon reason and must not be arbitrary or capricious; and rejects the purely personal “good faith” test of the Corn Products Refining Co. case, which held that in the seller's sole judgment, if for any reason he was dissatisfied, he was entitled to revoke the credit. In the absence of the buyer's failure to take the 2% discount as was his custom, the banker's report given in that case would have been “adequate” assurance under this Act, regardless of the language of the “satisfaction” clause. However, the seller is reasonably entitled to feel insecure at a sudden expansion of the buyer's use of a credit term, and should be entitled either to security or to a satisfactory explanation.
The entire foregoing discussion as to adequacy of assurance by way of explanation is subject to qualification when repeated occasions for the application of this section arise. This Act recognizes that repeated delinquencies must be viewed as cumulative. On the other hand, commercial sense also requires that if repeated claims for assurance are made under this section, the basis for these claims must be increasingly obvious.
5. A failure to provide adequate assurance of performance and thereby to re-establish the security of expectation, results in a breach only “by repudiation” under subsection (4). Therefore, the possibility is continued of retraction of the repudiation under the section dealing with that problem, unless the aggrieved party has acted on the breach in some manner.
The thirty day limit on the time to provide assurance is laid down to free the question of reasonable time from uncertainty in later litigation.
6. Clauses seeking to give the protected party exceedingly wide powers to cancel or readjust the contract when ground for insecurity arises must be read against the fact that good faith is a part of the obligation of the contract and not subject to modification by agreement and includes, in the case of a merchant, the reasonable observance of commercial standards of fair dealing in the trade. Such clauses can thus be effective to enlarge the protection given by the present section to a certain extent, to fix the reasonable time within which requested assurance must be given, or to define adequacy of the assurance in any commercially reasonable fashion. But any clause seeking to set up arbitrary standards for action is ineffective under this Article. Acceleration clauses are treated similarly in the Articles on Commercial Paper and Secured Transactions.
7. As to the use of a record other than a writing and communications that are not written, see Section 2-207, Comment 8.

11.3.7 UCC 2-611 11.3.7 UCC 2-611

§ 2-611. 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.
2) Retraction may be by any method which clearly indicates to the aggrieved party that the repudiating party intends to perform, but must include any assurance justifiably demanded under the provisions of this Article (Section 2-609).
3) Retraction reinstates the repudiating party's rights under the contract with due excuse and allowance to the aggrieved party for any delay occasioned by the repudiation.
OFFICIAL COMMENT
Purposes: To make it clear that:
1. The repudiating party's right to reinstate the contract is entirely dependent upon the action taken by the aggrieved party. If the latter has cancelled the contract or materially changed his position at any time after the repudiation, there can be no retraction under this section.
2. Under subsection (2) an effective retraction must be accompanied by any assurances demanded under the section dealing with right to adequate assurance. A repudiation is of course sufficient to give reasonable ground for insecurity and to warrant a request for assurance as an essential condition of the retraction. However, after a timely and unambiguous expression of retraction, a reasonable time for the assurance to be worked out should be allowed by the aggrieved party before cancellation.