Performance Flashcards
7 cards from real OK BAR practice questions. Tap to flip, then mark Knew It or Still Learning — missed cards come back until you master them.
Read the first 7 Performance flashcards as text
A contract conditions a duty on the obligee obtaining financing, but the obligee deliberately never applies for a loan. The condition is:
Answer: Excused by the prevention doctrine, because the party hindered its occurrence in bad faith
Under the prevention doctrine, a party who wrongfully prevents or hinders the occurrence of a condition cannot rely on its nonoccurrence, and the condition is excused.
An insurer's policy requires proof of loss within 60 days, but the insurer tells the insured 'take your time, no rush.' The insured files on day 75. The insurer's best-defeated defense is the deadline, because the insurer:
Answer: Waived the condition and may be estopped from reasserting it
A party may waive a condition inserted for its benefit, and reliance on the waiver estops later insistence on strict compliance.
Parties to an existing contract agree that one party will accept a different, substituted performance, with the original duty discharged only upon performance of the new one. This arrangement is:
Answer: An accord, with satisfaction discharging both the accord and the original duty
An accord is an agreement to accept substitute performance; the original duty is suspended and discharged only when the accord is performed (satisfaction).
A debtor owes an undisputed, liquidated $10,000 debt and sends a check for $6,000 marked 'payment in full,' which the creditor cashes. At common law, the creditor may:
Answer: Still recover the remaining $4,000, because part payment of a liquidated debt lacks consideration
Payment of less than a liquidated, undisputed debt gives no consideration for discharging the balance, so an accord and satisfaction fails.
All original parties agree that a new party will assume the contractor's duties and the original contractor is completely released. This is:
Answer: A novation, discharging the original contractor
A novation requires assent of all parties to substitute a new obligor and immediately discharges the original party, unlike a mere delegation.
Under UCC risk-of-loss rules with no breach, a shipment contract places the risk of loss on the buyer when:
Answer: The seller duly delivers the goods to the carrier
In a shipment contract, risk of loss passes to the buyer when the seller duly delivers conforming goods to the carrier.
A seller ships nonconforming goods, and they are destroyed in transit under a shipment contract. Who bears the risk of loss?
Answer: The seller, because a breach prevents risk from passing until cure or acceptance
When tendered goods so fail to conform that the buyer could reject, risk of loss remains on the seller until cure or acceptance despite the shipment term.