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C

Common types of impracticability:

1

Supervening destruction.  (Taylor)

2

SPECIFIC source of supply fails

a

If no specific source of supply contemplated in K, however, no excuse

3

Construction contracts — no-fault destruction of work in progress

a

Builder bears risk: he must rebuild.  (Fowler)

b

Destruction can excuse LATE perf, however

4

Construction contracts — no-fault destruction of bldg during repair or renovation

a

K is discharged.  (Fowler)

b

Builder must be given restitution for benefit already conferred (prior to destruction).  (Fowler) (Albre Marble)

c

Party may be compensated for rel dams IF THEY CONFERRED A BENEFIT (i.e., if they were WROUGHT INTO bldg).  (Albre Marble)

5

Sale of goods — destruction of the goods

a

K avoided if ELTS:  (UCC § 2-613)

i

Where goods are IDENTIFIED when K is made

ii

AND goods are destroyed w/o fault of either party

iii

BEFORE risk of loss passes to buyer

b

If loss is total, K is avoided.  If goods are damaged, buyer may avoid or may accept at lower price

c

If risk of loss passed to buyer, K is still enforceable — buyer must pay

d

See UCC § 2-509 for when risk of loss passes

D

Failure to develop revolutionary new technology, as promised, does not excuse.  (Wegematic)

III

Frustration

A

Occurs where K could still be performed, but underlying PURPOSE or VALUE of K has been destroyed by supervening event not r’bly f’ble at time K was entered into.  (Krell — the coronation case)

B

K voided

IV

Ex of impracticability v. frustration

A

Imprac: A contracts w/ B to buy 1,000 tons of iron to repair a ship.  A war then causes price of iron to rise astronomically.  Contract is now impracticable b/c of high price, though not frustrated b/c purpose of K — to repair ship — still exists

B

Frustration: As above, but instead of war, ship is destroyed.  Contract is frustrated, b/c purpose of K no longer exists.  But K is not impracticable, b/c A could obviously still buy the iron

Statute of Frauds

I

K’s w/in S/F

A

Sale of goods > $500; mods to K for sale of goods > $500

B

Real property

C

K that cannot be performed w/in one year

II

Sale of goods

A

How to tell if K is for sale of goods?  Look at main purpose of K (b/c lots of K’s for sale of goods have svcs included)

B

Mods to K for sale of goods > $500 are also w/in S/F if new agr’t that results is w/in S/F.  (UCC § 2-201)

C

Gen’y all that’s req’d is that writing show a K has been made.  (UCC § 2-201)

1

Incorrect stmt of terms does not render writing invalid

2

BUT K only enforceable up to qty stated in writing

D

EXCEPTIONS — no writing req’d where:

31

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