contracts: march 4 2010 class notes

recap.
express warranty.
can be against public policy.
implied warranty (repairs made to the roof and the lessor did not authorize them; lessor couldn't know if hte lessee's negligence created the disrepair or choose what updates they wanted to make. lessee forfeits right to reimbursement of repair because of the court's reading of an implied warranty)
clark v. west: author, publisher will pay him $2 a page or $6 a page if he doesn't drink. publishers see the early work, approve and tell him not to worry about the drinking. west then won't pay for the book. clark argues successfully that west waived its rights to the drinking clause. it's possible to be entitled to a condition and yet waive the obligations set forth in the condition. it was an oral waiver -- was parole evidence an issue? no: this was not about figuring out the meaning of the bargain or agreement, it was instead about a modification of waiver after the creation.

in exchange of the waiver of condition, does there need to be fresh consideration?

ferguson takeaway: you can have pretty rock hard language and still there are creative ways to pick holes into it. there are some things however that are pretty immutable. this case would have been better resolved as a tort case (SPL) but the problem at the time was one of privity.

performance and constructive conditions of exchange. 
when does the breach of one condition generate an excuse to not perform on the other side?
in other words, when are conditions in/dependent?
when does one party's performance depend on another performance?


kingston v. preston

at what point did the property exchange hands, when the buyer finished his duties of making payments or when the arrangement was reached?
security: giving the security was a condition that had to be fulfilled first. the transfer of the business was contingent on the security being met. if/since it was not, then the seller's ability to transfer the business is excused because the preceeding requirements are not met. there is a sequence due to the nature of hte business relationship: the seller won't transfer without the security, otherwise the security agreement would have no meaning.

palmer v. fox
sale of land where there's a down payment and then monthly payments over a few years, and then a balance is left of $700-ish dollars. the seller's assignee sues for the balance.
the defense is that the assignees failed to make required improvements, which justifies non-payment of the balance.
however, the contract did not say *when* the improvements had to be made. though it *did* specify when the payments had to be made.
doesn't a delay deprive the buyer of value of the use as the seller delays repairs? why didn't the buyer specify a timeline for repairs? why do we construe this ambiguity against the seller in their having to make the improvements? 
fairness.
the plaintiff wants the money even though it hasn't made the repairs. however, the plaintiff didn't make any improvements.
the plaintiff has breached a condition and the obligation to pay was dependent on the condition to improve.
does the court agree with the defendant? how does the case turn out?
do all breaches of dependent conditions automatically excuse performance?
no only MATERIAL BREACH
what makes something material instead of immaterial?

jacob v. kent... exercise of perfect tender
why should it matter if the breach is in good faith instead of willful?

o.w. grun v. cope
can be argued different ways. you can argue that color is different than pipes. that color is material or immaterial to the usability of the product.