Right: The transfer of a legal right is an “Assignment”
Duty: The transfer of a legal duty is a “Delegation”
A right may be legally assigned so long as the Duty correlative to that right is not made more burdensome for the Obigor
A Duty may be legally delegated so long as the performance of that duty by the delegate will give to the obligate that which was bargained for under the terms of contract
Assumption: assuming anothers duty as been delegated to them
Contract: An agreement of legal obligation, terms which have mutual agreements
Dynamics of notice: once transfer is of notice to seller, they may not perform that duty anymore
3rd party beneficiaries
*Section Code 1559
“A contract made expressly (addressed, for the purpose) for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”
“The question of whether a third party is a done, creditor, or incidental beneficiary is a question of construction and the intent must be gathered from reading the contract as a whole under the light of the circumstances under which it was entered. The test is whether an intent to benefit the third party appeared from the terms of contract.”
Civil Code 1589
“A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.”
-Like an implied assumption
In order for an enforceable agreement there must be a contract or be in writing (sign)
Sale of Goods
Goods : Tangible property for sale to the public
Merchants Firm Offer
-Common Law: An offer could be revoked any time prior to acceptance, unless there was some consideration
-Article 2: An offer made by a merchant is irrevocable for reasonable period of time if written assurance is given. No consideration necessary.
-Any reasonable means under the circumstances Is permissible
-Promise to ship or prompt shipment it acceptance -Shipment of non-conforming goods is both an acceptance and a breach unless goods sent as an “accommodation” to buyer
Formation of sales
-Contract is one that is so unfair and one-sided it is unreasonable to enforce it
Once we have a viable contract, when does a breach occur?
-No breach, no cause of action
-Statute of limitations depends on written (4 years) or oral (2 years)
Breach of Contract
-When a duty which has become “Absolute” is not performed
-When does a duty become “absolute?
When all of the “conditions”, concurrent and/or precedent, express or implied have occurred, have been excused, or waved.
-What is a condition?
An act or an event, the occurrence of which must take place before a duty will become “absolute”
-Examples of Express Conditions
Sale of an existing Residence (Ex. For a purchase of a new residence you need to money from the sale of your existing residence. Must occur before the duty is absolute.)
Secure Financing in a given Amount and/or at a given annual interest rate
Padres win the Pennant
WE get the “contract”
Performance to ones satisfaction
-Implied Concurrent Conditions
Where the agreed upon duties are capable of simultaneous performance
Each shall be deemed an implied Condition current to the others duty to perform
-Tender (to offer) of Performance
The ability for the seller to be able to perform
Relieves condition, duty is now absolute
Tender of Performance occurs when one burdened with the performance of a legal duty demonstrates that they have both the ability and the desire to perform the duty
-Seller and buyer of car. Condition is seller must deliver car. Seller duty is absolute when all repairs by shop are done.
-Ex. Fabrication shop has repairman come every 2 weeks to repair tools. Condition is that the repairman has a finite time to perform his duty.