Exam 5: Performance and Breach of Contract

Marnie fails to deliver any of the fruit pies she had contracted to make for Benny's Bakery. -When faced with a seller's onerous exemption clause,it would be time well spent for an aggrieved purchaser to consider the effect of the law as it relates to fundamental breach.

Yongwei purchased an iPod on eBay.The iPod worked perfectly but the case was scratched.The eBay seller had stated that the iPod was in new condition.Yongwei will be successful in an action to a full refund on the basis of breach of condition.

Guthrie Caterers failed to turn up as contracted to cater George and Susan's wedding reception.The deposit,which was the only money paid to that point,was returned by courier the next morning without comment. -There was an express repudiation of the contract when Guthrie failed to arrive when and where it should have.

Zelda contracts with Yvonne for a supply of specialized computer components worth $6,000,which she needs to meet a contract to supply Winnie with 60 laptop computers,a contract that is worth $65,000 to Zelda.Zelda makes it clear to Yvonne that her contract with Winnie is vital to let her get established in the market and that it is imperative that Yvonne meet the deadline."If you can't," she says,"I'll take the business to someone who can." Yvonne wants the business badly,so,against her better judgment,she agrees to a clause in the contract that says that,for every day delivery is late,she will pay Zelda $10,000.

Guthrie Caterers failed to turn up as contracted to cater George and Susan's wedding reception.The deposit,which was the only money paid to that point,was returned by courier the next morning without comment. -If,because they had received a week's notice,George and Susan were able to hire Cameron Caterers and that had cost $10,000 instead of the $7,000 that Guthrie would have charged,George and Susan would be able to get $10,000 damages from Guthrie.

Marnie fails to deliver any of the fruit pies she had contracted to make for Benny's Bakery. -A condition may become a warranty ex post facto.

Cecilia agreed to buy an antique Japanese sword from Garfunkel.After the contract is formed but before Garfunkel delivers the sword or Cecilia pays any money to him,the government passes a law that makes it a crime to buy a sword other than a fencing foil.Since the contract was made before the law was passed,it is not frustrated.

Antoine,a bush pilot,agrees to ferry an exploration crew from Gamma Oil to a remote part of Alberta in his helicopter,and to retrieve them a month later.Three weeks into the bush,the Gamma team learn through listening to local radio chatter on their short-wave radio that Antoine has sold his helicopter to a pilot in New Brunswick. -In any future dispute over the situation,Gamma's position will be that Antoine's actions constituted anticipatory breach.

Mario,a professional entertainer,entered into a one-year contract with Barnum to perform exclusively at Barnum's theatre,and to perform nowhere else during that period of time.A week after the agreement was signed,Mario entered into another agreement with a competitor of Barnum to perform at his opera house. -Barnum is entitled to treat Mario's actions as a breach of his contract.

Helen offered to sell her 10-speed touring bicycle to Jane for $200 on her return from a two-week bicycle trip to a distant city.At the end of the first week,Jane received a long distance telephone call from Helen,in which Helen advised Jane that she had decided not sell the bicycle on her return.Jane was disappointed,as a similar bicycle on the market would cost her at least $250.She decided to wait until Helen returned then urge her to go through with the sale.Before Helen reached home,her bicycle was stolen,and never found. -Had the bicycle not been destroyed,Jane would be entitled to specific performance of the contract if Helen had refused to sell.

Mario,a professional entertainer,entered into a one-year contract with Barnum to perform exclusively at Barnum's theatre,and to perform nowhere else during that period of time.A week after the agreement was signed,Mario entered into another agreement with a competitor of Barnum to perform at his opera house. -Barnum may request the court to issue an injunction to prevent Mario from performing at the competitor's opera house.

Helen offered to sell her 10-speed touring bicycle to Jane for $200 on her return from a two-week bicycle trip to a distant city.At the end of the first week,Jane received a long distance telephone call from Helen,in which Helen advised Jane that she had decided not sell the bicycle on her return.Jane was disappointed,as a similar bicycle on the market would cost her at least $250.She decided to wait until Helen returned then urge her to go through with the sale.Before Helen reached home,her bicycle was stolen,and never found. -Jane cannot recover anything from Helen for repudiation of the contract,because the contract was frustrated before the date fixed for performance.

The vast majority of contracts are discharged by operation of law.

Guthrie Caterers failed to turn up as contracted to cater George and Susan's wedding reception.The deposit,which was the only money paid to that point,was returned by courier the next morning without comment. -If Guthrie had called a week before the wedding,this would have been a breach de minimus of the contract.

Gavin is in the business of local transport of goods,as well as running a rural bus service.He contracts for a delivery van from his local truck dealer,but before the dealer places the order with the manufacturer,Gavin amends the order to request the minibus model of the delivery van.Gavin and the dealer have created a new contract that replaces the prior one.

Petra agreed to purchase franchise rights from Valley Cream Inc.to sell its ice cream from small trucks in a large metropolitan area.Her deposit on the transaction was $15,000 against a final price of the rights at $40,000.The contract contained a term,of which Petra was aware,that the deposit would be forfeited as liquidated damages if she did not follow through on the deal.Early on in the process,Petra could not get the financing she needed,and was forced to back out.Valley Cream,whose file contained only the copy of the agreement,refused to return the money.The most important part of Petra's Statement of Claim will be that relating to

Morton,a famous entertainer,agreed to host a telethon for the Society of Feathered Friends at half his usual $50,000 fee.A week before the telethon,$25,000 was paid into his account.Morton had spent many hours working up jokes about the Society of Feathered Friends,since his normal materials were not really suitable for the expected audience.On the morning of the telethon he awoke with laryngitis and no voice,and the doctor says he cannot perform. A)Describe how this will affect the contract between Morton and the Society of Feathered Friends. B)If Morton had done some promotional ads for the telethon,would that change your answer to (A)?

Marnie fails to deliver any of the fruit pies she had contracted to make for Benny's Bakery. -If Benny treated Marnie's failure to perform as a breach of warranty,the contract would not end but,to the extent that Marnie's breach had caused him injury,she would have to pay Benny damages.

Marnie fails to deliver any of the fruit pies she had contracted to make for Benny's Bakery. -Since this is a breach of a condition of the contract,Benny is released from any obligations he has under the contract,and the contract is at an end.

In the six months since Zippy Worldwide Courier bought a truck from the Solidbuilt Motor Co. ,the truck has broken down constantly and has been in use for a total of only two weeks,never for more than half a day at a time.Zippy wants to return it and get a new truck,but Solidbuilt insists it is mendable.The contract has a replacement warranty clause for defective parts,and another clause says that only the warranties,conditions,and other obligations set out in the contract are valid,and that all others,no matter how they might arise,have no force or effect. Discuss whether or not Zippy could get a court to permit it to rescind the contract.