Performance:

What performance is due? Is any performance discharged?

Conditions, excuses  void performance

1) Conditions (condition v. promise) (promise creates a legal duty, condition does not)
•express conditions: “only if . . .” / “provided that . . .” / “on the condition that . . .”
 nonperformance of a condition leads to performance being discharged
 nonperformance of a promise leads to breach of a promise
•constructive conditions: CCE + Order of Performance  if no time period necessary for
completion, order of performance is simultaneous. If one side needs time, they go first. But, they
can contract otherwise

 to avoid discharge of performance, the condition MUST be satisfied unless the condition is
EXCUSED (waiver, wrongful hinderance, election, estoppel)
•waiver: you can waive a condition orally
•wrongful hinderance: if you try to interfere with a condition because you want to get out of a
contract, that is not going to work. (conditional on you getting a loan and in bad faith you make
sure you don’t get a loan)
•election: waiver by conduct, you perform anyway even with no performance of the condition
•estoppel: other party reasonably relies on your representation that you are not going to enforce
the condition

2) Excuses: (unforeseeable event, not caused by you) (extreme events)

a) Impossibility  unforeseeable event that makes performance impossible (supervening

illegality, destruction of property)

b) Impracticability  unforeseeable event that makes performance unreasonably difficult

c) Frustration of Purpose
A party's duty to perform under a contract is discharged if:

1. An unforeseeable event occurs that destroys one party's principal purpose for entering

into the contract (even if performance is not rendered impossible);
2. The nonoccurence of the event was a basic assumption of the contract; AND
3. The party seeking discharge was NOT at fault.

Ex: purpose of contract was to see Taylor Swift at an amusement park, and she’s sick so you
can’t go now. The contract is not impossible – you can still go to the amusement park, but the
purpose is messed up.
3) Anticipatory repudiation  (when you let them know you cannot perform)

•Common Law: AR (anticipatory repudiation) occurs when a promisor UNEQUIVOCALLY

repudiates (words or conduct) BEFORE performance is due
 unequivocal = without doubt, absolute: I absolutely cannot perform my end of the contract

•UCC: If reasonable grounds for insecurity arise, the nonrepudiating party may demand adequate
assurance
 if the repudiating party fails to provide adequate insurance within a reasonable amount of time
(NOT > 30 DAYS) = AR

Effect of AR:
1) Can sue for breach of contract
2) Can suspend performance and wait to sue until performance
3) Can treat the repudiation as an offer to rescind and treat performance as discharged
4) Can ignore the repudiation and demand performance  nonrepudiating party has a duty to
mitigate damages while waiting

•repudiating party can retract repudiation if the nonrepudiating party has not relied on it or
considered it to be final