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Performance and Remedies

PA ET RHC 18It is an immutable law in business that words are words, explanations are explanations, promises are promises – but only performance is reality.

Harold S. Geneen, CEO of ITT Managing (co-written with Alvin Moscow, 1984)

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Learning Objectives

• Explain the effect of conditions on the duty to perform a contract

• Distinguish strict from substantial performance

• Discuss the various remedies for breach of contract

• List circumstances that can excuse performance

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• Entering into a contract evidences an intention to perform (complete) obligations under the contract– Generally, each party performs the

promise and is discharged (released) from further obligation

• If a party fails to perform as expected, courts may be asked to determine the respective rights and duties of the parties

Overview

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• Sometimes a promisor’s duty to perform depends on the occurrence of some event or condition, an uncertain, future event

• A condition may be classified as a:– Condition precedent– Condition subsesequent– Condition concurrent

Conditions in a Contract

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Condition Precedent

• A future, uncertain event creating a duty to perform– Example: Tisha contracts to buy a house on the

condition she is able to obtain financing. Contract arises and she is obligated to purchase the house once she obtains financing

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Condition Concurrent

• When the contract calls for parties to perform at the same time– Example: Bryan promises to buy Stevie’s guitar

for $1000. Stevie must give Bryan the guitar when Bryan gives Stevie $1000.

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Condition Subsequent

• A future, uncertain event that discharges the duty to perform– Example: Lee agrees to work for WoolCo until he

returns to college. Lee returns to college in August and discharges his obligation under the contract.

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Classification of Conditions Based Method of Creation

• Express condition: condition specified in the language of the parties’ contract

• Implied-in-fact condition: condition not specifically stated by the parties but implied by the nature of the parties’ promise

• Constructive condition: Also known as implied-in-law conditions; conditions imposed by law rather than by agreement of parties to do justice between the parties

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Excuse of Conditions

• Occurrence of a condition may be excused– Estoppel: when a person whose duty

is conditional leads other party to rely on his noninsistence on the condition

– Waiver: when a person whose duty is conditional voluntarily gives up his right to the occurrence of the condition

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• Occurrence of condition excused– When occurrence of condition

was prevented or hindered by party benefiting from the condition

– When performance of the act that constitutes the condition becomes impossible

Excuse of Conditions

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Harbor Park Market v. Gronda

• Facts: – Grondas agreed to sell assets to Harbor Park

Market (Harbor) expressly conditioned:• “This Purchase Agreement is subject to

review & approval of attorney Lynn Stedman…”

– Before Stedman approved Harbor contract, Gronda conditionally accepted another offer, also expressly conditioned on Stedman’s approval

– Stedman approved second contract and Harbor sued for specific performance, winning at trial

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• Issue and Reasoning: – Issue on appeal is whether Grondas

interfered with (and waived) the condition precedent by submitting to second contract to Stedman

– Contract language gave attorney complete discretion to approve or disapprove the agreement for whatever reason, and Grondas performed condition as required

– Reversed and remanded in favor of Grondas

Harbor Park Market v. Gronda

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• To determine whether a promisor is discharged by performance, courts consider the standard of performance expected

• A strict performance standard requires full or perfect compliance with the contract terms– Example: Buyer agrees to finalize a home purchase

(close) by 5:00 pm on Nov. 21. If Buyer does not close by that time, the contract ends. Buyer is discharged from buying and Seller is discharged from turning over the house, but there may be legal remedies to Seller for Buyer’s breach

Performance of Contracts

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• A substantial performance standard is slightly lower standard applied to duties that are difficult to perform without some deviation from perfection in minor respects– Example: Bob Builder built a home for Jason.

Bob met the contract terms except he didn’t paint the baseboards the right shade of white. Bob is discharged and Jason has the duty to pay the contract price less any damages (repainting) resulting from the defects in performance

Performance of Contracts

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Substantial Performance

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Breach of Contract

• Under the implied covenant of good faith and fair dealing, every contract includes an obligation to perform in good faith

• If a promisor fails to perform, breach occurs

• At minimum, breach of contract gives the non-breaching party the right to sue and recover for damages caused by the breach

• For a material (serious) breach, further legal remedies are available

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Determining Materiality

• Standard for determining materiality is flexible, but generally based on the amount of the breach and timing for performance– Example: if contract contains a “time is of

the essence” provision, any delay by either party may constitute a material breach

– Example: if time for performance immaterial, promisee must accept late performance if within reasonable time after performance due, but may deduct costs of delay

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Arnhold v. Ocean Atlantic Woodland Corp.

• Facts: – Sellers agreed to sell farmland to developer Ocean

Atlantic (Buyer), but delays ensued– After negotiation and litigation, Sellers and Buyer

signed a settlement agreement with a “time is of the essence” clause (basis of the lawsuit)

– Shortly before closing date, Buyers again tried to extend the contract and Sellers refused, warning that “time is of the essence”

– Buyers assured Sellers they would close, but failed to do so; Sellers notifed Buyers of termination

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• Procedural History and Issue: – Buyers sued Sellers seeking specific performance– Trial court found for Sellers and Buyers appealed– Issue: whether Buyers materially breached the

agreement by failing to tender the purchase funds and close on the property on the specified date

Arnhold v. Ocean Atlantic Woodland Corp.

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• Legal Reasoning and Holding:– The materiality inquiry focuses on two

interrelated issues: (1) the intent of the parties with respect to the disputed provision; and (2) the equitable factors and circumstances surrounding the breach of the provision

– Intent of the parties was clear – time was of the essence and timing was material

Arnhold v. Ocean Atlantic Woodland Corp.

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• Legal Reasoning and Holding:– In examining the totality of the

circumstances, the facts do not support Buyer’s argument

• “Sellers displayed the patience of Job by waiting nearly 3 1⁄2 years”

– Buyer treated material deadlines as trivial, thus Buyer has lost any right to purchase Sellers’ land

– Affirmed in favor of Sellers

Arnhold v. Ocean Atlantic Woodland Corp.

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• When promisor indicates before time for performance that promisor is unwilling or unable to carry out the contract, anticipatory repudiation or anticipatory breach occurs

• Promisee has choices:– Withhold his/her own performance and sue for

damages for total breach of contract immediately– Wait to sue until time for performance in case

other party changes mind and decides to perform– Waive his/her rights to performance

Anticipatory Repudiation

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• Nonperformance of a duty generally is a breach of contract, but nonperformance may be excused in certain circumstances:– Impossibility: “it cannot be done by anyone”

• See East Capitol View Community Development Corporation v. Robinson

– Impracticability: when unforeseen developments make performance highly impracticable, unreasonably expensive, or of little value to promisee (UCC 2–615)

Excuses for Non-Performance

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• Discharge by mutual agreement• Accord and satisfaction

– Accord is an agreement in which a promisee who has existing claim agrees with promisor that s/he will accept some performance different from that originally agreed on. When promisor performs the accord, that is called a satisfaction.

• Discharge by waiver of promisee

Other Reasons for Discharge

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• Discharge by alteration – One party alters and other does not consent

• Discharge by statute of limitations– One party takes too long to bring lawsuit– UCC 2–725: four-year statute of limitations

for contracts involving the sale of goods

• Discharge by decree of bankruptcy

Other Reasons for Discharge

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• Legal remedies (money damages)– Compensatory damages, nominal

damages, liquidated (contractual) damages, and in certain circumstances, punitive damages

• Equitable remedies– Specific performance– Injunction

• Restitution

Remedies for Breach of Contract

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• George v. AL Hoyt & Sons, Inc.: consequential damages that could have been reasonably anticipated by the parties may be awarded to the nonbreaching party

• Houseman v. Dare: some possessions, such as a dog, possess special subjective value similar to "heirlooms, family treasures, and works of art“ and specific performance will be ordered

Relevant Cases

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Test Your Knowledge

• True=A, False = B– When a condition precedent occurs, the

contract arises, creating duties to perform– John agrees to work as Katy’s realtor until

he sells her house. Katy closed on her house sale yesterday, so the contract has been discharged.

– The standard for materiality of a breach is when only 50% of a contract has been performed

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• True=A, False = B– Legal remedies for breach of contract

include specific performance or injunction– Nonperformance of a duty is always a

breach of contract– Performance that falls short of complete

performance in some minor respect, but does not deprive the other party of a material part of the consideration for which s/he bargained is known as substantial performance.

Test Your Knowledge

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• Multiple Choice– Steve promised to work for his employer

on Saturday morning. Steve didn’t show up for work on Saturday because he decided he didn’t need the overtime money. Steve:

a) Is excused due to impracticalityb) Breached his contract c) Breached the implied covenant of good faith d) Both B and Ce) None of the above

Test Your Knowledge

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• Multiple Choice– Robert contracted to paint Stan’s house by

the end of June, but realized after signing the contract that he had too many jobs to do and could not finish by the end of June. Robert called Stan and told him he could not fulfill the contract. Robert:

a) Is excused due to impossibilityb) Engaged in anticipatory breachc) Is excused because of condition precedentd) None of the above

Test Your Knowledge

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Thought Questions

• Should a non-breaching party always file suit against a breaching party?

• What are the ethical issues involved in a breach of contract?