美国合同法（第二次重述&第3部分中英文）
216. CONSISTENT ADDITIONAL
Evidence of a consistent additional term is admissible to
supplement an integrated agreement unless the court finds that the
agreement was completely integrated.
agreement is not completely integrated if the writing omits a
consistent additional agreed term which is
(a) agreed
to for separate consideration, or
(b) such a
term as in the circumstances might naturally be omitted from the
217. INTEGRATED
AGREEMENT SUBJECT TO ORAL REQUIREMENT OR A
parties to a written agreement agree orally that performance of the
agreement is subject to the occurrence of the agreements is subject
to the occurrence of a stated condition, the agreement is not
integrated with respect to the oral condition.
218. UNTRUE RECITALS;
EVIDENCE OF CONSIDERATION
recital of a fact in an integrated agreement may be shown
Evidence is admissible to prove whether or not there is
consideration for a promise, even though the parties have reduced
their agreement to writing which appears to be completely
integrated agreement.
TOPIC 4. SCOPE AS AFFECTED BY
219. USAGE.
Usage is habitual or customary
220. USAGE RELEVANT TO
INTERPRETATION
agreement is interpreted in accordance with a relevant usage if
each party knew or had reason to know of the usage and neither
party knew or had reason to know that the meaning attached by the
other was inconsistent with the usage.
the meaning attached by one party accorded with a relevant usage
and the other knew or had reason to know of the usage, the other is
treated as having known or had reason to know the meaning attached
by the first par ty.
221. USAGE
SUPPLEMENTING AN AGREEMENT
agreement is supplemented or qualified by a reasonable usage with
respect to agreements of the same type if each party knows or has
reason to know of the usage and neither party knows or has reason
to know that the other party has an intention inconsistent with the
222. USAGE OF
usage of trade is a usage having such regularity of observance in a
place, vocation, or trade as to justify an expectation that it will
be observed with respect to a particular agreement. It may include
a system of rules regularly observed even though particular rules
are changed from time to time.
existence and scope of a usage of trade are to be determined as
questions of fact. If a usage is embodied in a written trade code
or similar writing t he interpretation of the writing is to be
determined by the court as a question of law.
(3) Unless
otherwise agreed, a usage of trade in the vocation or trade in
which the parties are engaged or a usage of trade of which they
know or have reason to know gives meaning to or supplements or
qualifies their agreement.
223. COURSE OF
course of dealing is a sequence of previous conduct between the
parties to an agreement which is fairly to be regarded as
establishing a common basis of understanding for interpreting their
expressions and other product.
(2) Unless
otherwise agreed, a course of dealing between the parties gives
meaning to or supplements or qualifies their agreements.
TOPIC 5. CONDITIONS AND SIMILAR
224. CONDITION
condition is an event, not certain to occur, which must occur,
unless its non- occurrence is excused, before performance under a
contract becomes due.
225. EFFECTS OF THE
NON-OCCURRENCE OF CONDITION
Performance of a duty subject to a condition cannot become due
unless the condition occurs or its non-occurrence is
(2) Unless
it has been excused, the non-occurrence of a condition discharges
the duty when the condition can no longer occur.
Non-occurrence of a condition is not a breach by a party unless he
is under a duty that the condition occurs.
226. HOW AN EVENT MAY
BE MADE A CONDITON
may be made a condition either by the agreement of the parties or
by a term supplied by the court.
227. STANDARDS OF
PREFERENCE WITH REGARD TO CONDITIONS
resolving doubts as to whether an event is made a condition of an
obligor's duty, and as to the nature of such an event, an
interpretation is preferred that will reduce the obligee's risk of
forfeiture, unless the event is within the obligee's control or the
circumstances indicate that he has assumed the risk.
(2) Unless
the contract is of a type under which only one party generally
undertakes duties, when it is doubtful whether
(a) a duty
is imposed on an obligee that an event occur, or
event is made a condition of the obligor's duty, or
event is made a condition of the obligor's duty and a duty is
imposed on the obligee that the event occur, the first
interpretation is preferred if the event is within the obligee's
case of doubt, an interpretation under which an event is a
condition of an obligor's duty is preferred over an interpretation
under which the non-occurrence of the event is a ground for
discharge of that duty after it has become a duty to
228. SATISFACTION OF
THE OBLIGOR AS A CONDITION
When it is
a condition of an obligor’s duty that he be satisfied with respect
to the obligee’s performance or with respect to something else, and
it is practical to determine whether a reasonable person in the
position of the oligator would be satisfied, an interpretation is
preferred under which the condition occurs if such a reasonable
person in the position of the obligor would be
satisfied.
229. EXCUSE OF A
CONDITION TO AVOID FORFEITURE
extent that the non-occurrence of a condition would cause
disproportionate forfeiture, a court may excuse the non-occurrence
of that condition unless its occurrence was a material part of the
agreed exchange.
230. EVENT THAT
TERMINATES A DUTY
(1) Except
as stated in subsection(2), if under the terms of the contract the
occurrence of an event is to terminate an obligor’s duty of
immediate performance or one to pay damages for breach, that duty
is discharged if the event occurs.
obligor’s duty is not discharged if occurrence of the
(a) is the
result of a breach by the obligor of his duty of good faith and
fair dealing, or
&(b) could not have
been prevented because of impracticability and continuance of the
duty does not subject the obligor to a material increase
obligor’s duty is not discharged if, before the event occurs, the
obligor promises to perform the duty even if the event occurs and
does not revoke hi s promise before the obligee material changes
his position in reliance on it.
CHAPTER 10 PERFORMANCE
AND NON-PERFORMANCE
PERFORMANCES TO BE EXCHANGED UNDER AN EXCHANGE OF
231. CRITERION FOR
DETERMINING WHEN PERFORMANCES ARE TO BE EX CHANGED UNDER AN
EXCHANGE OF PROMISES
Performances are to be exchanged under an exchange of
promises if each promise is at least part of the consideration for
the other and the performance of each promise is to be exchanged at
least in part for the performance of the other.
232. WHEN IT IS
PRESUMED THAT PERFORMANCES ARE TO BE EXCHANGE D UNDER AN EXCHANGE
OF PROMISES
consideration given by each party to a contract consists in whole
or in part of promises, all the performances to be rendered by each
party taken collectively are treated as performances to be
exchanged under an exchange of promise, unless a contrary intention
is clearly manifested.
233. PERFORMANCE AT ONE
TIME OR IN INSTALLMENTS
performances are to be exchanged under an exchange of promises, and
the whole of one party’s performance can be rendered at one time,
it is due at one time, unless the language or the circumstances
indicate the contrary.
only a part of one party’s performance is due at one time under
subsection(1), if the other party’s performance can be so
apportioned that there is a comparable part that can also be
rendered at that time, it is due at that ti me, unless the language
or the circumstances indicate the contrary.
&234. ORDER OF PERFORMANCES
all or part of the performances to be exchanged under an exchange
of promises can be rendered simultaneously, they are to that extent
due simultaneously, unless the language or the circumstances
indicate the contrary.
(2) Except
to the extent stated in Subsection(1), where the performance of
only one party under such an exchange requires a period of time,
his performance is due at an earlier time than that of the other
party, unless the language o r the circumstances indicate the
TOPIC2. EFFECT OF PERFORMANCE AND
NON-PERFORMANCE
235. EFFECT OF
PERFORMANCE AS DISCHARGE AND OF NON-PERFROMANCE AS
performance of a duty under a contract discharges the
performance of a duty under a contract is due any non-performance
is a breach.
236. CLAIMS FOR DAMAGES
FOR TOTAL AND FOR PARTIAL BREACH
claim for damages for total breach is one for damages based on all
of the injured party’s remaining rights to performance.
claim for damages for partial breach is one for damages based on
only p art of the injured party’s remaining rights to
performance.
237. EFFECT ON OTHER
PARTY’S DUTIES OF A FAILURE TO RENDER PERFORMANCE
stated in &240, it is a condition of each party’s remaining duties
to r ender performances to be exchanged under an exchange of
promises that the re be no uncured material failure by the other
party to render any such performance due at an earlier
238. EFFECT ON OTHER
PARTY’S DUTIES OF A FAILURE TO OFFER PERFORMANCE
or part of the performance to be exchanged under an exchange of
promises are due simultaneously, it is a condition of each party’s
duties to render such performance that the other party either
render or, with manifested p resent ability to do so, offer
performance of his part of the simultaneous exchange.
239. EFFECT ON OTHER
PARTY’S DUTIES OF A FAILURE JUSTIFIED BY NON- OCCURRENCE OF A
party’s failure to render or to offer performance may, except as
stated in subsection (2), affect the other party’s duties under the
rules stated in &&237 and 238 even though failure is justified by
the non-occurrence of a condition.
rule stated in Subsection (1) does not apply if the other party
assumed the risk that he would have to perform in spite of such a
240. PART PERFORMANCES
AS AGREED EQUIVALENTS
performances to be exchanged under an exchange of promises can be
apportioned into corresponding pairs of part performances so that
the parts o f each pair are properly regarded as agreed
equivalents, a party’s performance of his part of such a pair has
the same effect on the other’s duties to render performance of the
agreed equivalent as it would have if only that pair of
performances had been promised.
&241. CIRCUMSTANCES SIGNIFICANT IN DETERMINING
WHETHER A FAILURE IS MATERIAL
determining whether a failure to render or to offer performance is
material, the following circumstances are significant:
extent to which the injured party will be deprive of the benefit
extent to which the injured party can be adequately compensated for
t he part of that benefit of which
extent to which the party failing to perform or to offer to perform
likelihood that the party failing to perform or to offer to perform
will cure his failure, taking account of all the circumstances
including any r
extent to which the behavior of the party failing to perform or to
offer to perform comports with standards of good faith and fair
242. CIRCUMSTANCES
SIGNIFICANT IN DETERMINING WHEN REMAINING DUTIES ARE
determining the time after which a party’s uncured material failure
to render or to offer performance under the rules stated in &&237
and 238, the following circumstances are significant:
stated in &241;
extent to which it reasonably appears to the injured party that
delay may prevent or hinder him in making reasonable substitute
extent to which the agreement provides for performances without
delay, but a material failure to perform or to offer to perform on
a stated day does not of itself discharge the other party’s
remaining duties unless the circumstances, including the language
of the agreement, indicate that performance or a n offer to perform
by that day is important.
243.EFFECT OF A BREACH
BY NON-PERFORMANCE AS GIVING RIASE TO A CLAIM FOR DAMAGES FOR TOTAL
respect to performances to be exchanged under an exchange of
promises, a breach by non-performance gives rise to a claim for
damages for tot al breach only if it discharges the injured party’s
remaining duties to render such performance, other than a duty to
render an agreed equivalent under &240.
(2) Except
as stated in Subsection (3), a breach by non-performance
accompanied or followed by a repudiation gives rise to a claim for
damage for total breach.
at the time of the breach the only remaining duties of performance
are those of the party in breach and are for the payment of money
installments not related to one another, his breach by
non-performance as to less than t he whole, whether or not
accompanied or followed by a repudiation, does not give rise to
claim for damages for total breach.
(4) In any
case other than those stated in the preceding subsections, a breach
by non-performance gives rise to a claim for total breach only if
it so substantially impairs the value of the contract to the
injured party at the time of the breach that it is just in the
circumstances to allow him to recover damages based on all his
remaining rights to performance.
244. EFFECT OF
SUBSEQUENT EVENTS ON DUTY TO PAY DAMAGES
A party’s
duty to pay damages for total breach by non-performance is
discharged if appears after the breach that there would have been a
total failure by t he injured party to perform his return
A BREACH BY NON-PERFORMANCE AS EXCUSING THE NON OCCURRENCE OF A
party’s breach by non-performance contributes materially to the
non- occurrence of a condition of one of his duties, the
non-occurrence is excused.
246. EFFECT OF
ACCEPTANCE AS EXCUSING THE NON-OCCURRENCE OF A CONDITION
(1) Except
as stated in Subsection(2), an obligor’s acceptance or his
retention for an unreasonable time of the obligee’s performance,
with knowledge of or reason to know of the non-occurrence of a
condition of the obligor’s duty, operates as a promise to perform
in spite of that non-occurrence, under the rules stated in
the time of its acceptance or retention the obligee’s performance
involves such attachment to the obligor’s property that removal
would cause material loss, the obligor’s acceptance or retention of
that performance operates as a promise to perform in spite of the
non-occurrence of the condition, under th e rules stated in &84,
only if the obligor with knowledge of or reason to know of the
defects manifests assent to the performance.
247. EFFECT OF
ACCEPTANCE OF PART PERFORMANCE AS EXCUSING THE S UBSEQUENT
NON-OCCUTRENCE OF A CONDITION
obligor’s acceptance of part of the obligee’s performance, with
knowledge or reason to know of the non-occurrence of a condition of
the obligor’s duty, operates as a promise to perform in spite of a
subsequent non-occurrence of the condition under the rules stated
in &84 to the extent that it justifies the obligee in believing
that subsequent performances will be accepted in spite of that
non-occurrence.
248. EFFECT OF
INSUFFICIENT REASON FRO REJECTION AS EXCUSING THE NON-OCCURRENCE OF
A CONDITION
party rejecting a defective performance or offer of performance
gives an insufficient reason for rejection the non-occurrence of a
condition of his duty is excused only if he knew or had reason to
know of that non-occurrence and then only to the extent that the
giving of an insufficient reason substantially contributes to a
failure by the other party to cure.
249. WHEN PAYMENT OTHER
THAN BY LEGAL TENDER IS SUFFICIENT
payment of offer of payment of money is made a condition of an
obligor’s duty, payment or offer of payment in any manner current
in the ordinary course of business satisfies the requirements
unless the obligee demands payment in legal tender and gives any
extension of time reasonably necessary to procure it.
TOPIC 3, EFFECT OF PROSPECTIVE
NON-PERFORMANCE
250. WHEN A STATEMENT
OR AN ACT IS A REPUDIATION
repudiation is
statement by the obligor to the obligee indicating that the obligor
will commit a breach that would of itself give the oblige a claim
for damages for tot al breach under &243, or
voluntary affirmative act which renders the obligor unable or
apparently unable to perform without such a breach.
251. WHEN A FAILURE TO
GIVE ASSURANCE MAY BE TREATED AS A REPUDIATION
reasonable grounds arise to believe that the obligor will commit a
b reach by non-performance that would of itself give the obligee a
claim for da mages for total breach under &243, the obligee may
demand adequate assurance of due performance and may, if
reasonable, suspend any performance for which he has not already
received the agreed exchange until he receives such
assurance.
obligee may treat as a repudiation the obligor’s failure to provide
with in a reasonable time such assurance of due performance as is
adequate in the circumstances of the particular case.
252. EFFECT OF
INSOLVENCY
the obligor’s insolvency gives the obligee reasonable grounds to
believe that the obligor will commit a breach under the rule sated
in &251, the obligee may suspend any performance for which he has
not already received th e agreed exchange until he receive
assurance in the form of performance itself, an offer of
performance, or adequate security.
person is insolvent who either has ceased to pay his debts in the
ordinary course of business or cannot pay his debts as they become
due or is insolvent within the meaning of the federal bankruptcy
&253. EFFECT OF A REPUDIATION AS A BREACH AND ON
OTHER PARTY’S DUTIES
an obligor repudiates a duty before he has committed a breach by
non-performance and before he has received all of the agreed
exchange for it his repudiation alone gives rise to a claim for
damages for total breach.
performance are to be exchanged under an exchange of promises, one
party’s repudiation of a duty to render performance discharges the
other’s remaining duties to render performance.
254. EFFECT OF
SUBSEQUENT EVENTS ON DUTY TO PAY DAMAGES
party’s duty to pay damages for total breach by repudiation is
discharged if it appear after the breach that there would have been
a total failure by the injured party to perform his return
party’s duty to pay damages for total breach by repudiation is
discharged if it appears after the breach that the duty that he
repudiated would have been discharged by impracticability or
frustration before any breach by non-performance.
255. EFFECT OF A
REPUDIATION AS EXCUSING THE NON-OCCURRENCE OF A
party’s repudiation contributes materially to the non-occurrence of
a condition of one of his duties, the non-occurrence is
256. NULLIFICATION OF
REPUDIATION OR BASIS FOR REPUDAIATION
effect of a statement as constituting a repudiation under &250 or
the basis for repudiation under &251 is nullified by a retraction
of the statement if notification of the retraction comes to the
attention of the injured party before he materially changes his
position in reliance on the repudiation or indicates t o the other
party that he considers the repudiation to be final.
effect of events other than a statement as constituting a
repudiation under &250 or the basis for a repudiation under &251 is
nullified if, to the knowledge of the injured party, those events
have ceased to exist before he materially changes his position in
reliance on the repudiation or indicates to the ot her party that
he considers the repudiation to be final.
257. EFFECT OF URGING
PERFORMANCE IN SPITE OF REPUDIATION
injured party does not change the effect of a repudiation by urging
the repudiator to perform in spite of his repudiation or to retract
his repudiation.
TOPIC 4. APPLICATION OF
PERFORMANCE
258. OBLIGOR’S
DIRECTION OF APPLICATION
(1) Except
as stated in subsection (2), as between two or more contractual
duties owed by an obligor to the same obligee, a performance is
applied according to a direction made by the obligor to the obligee
at or before the time of performance.
(2) If the
obligor is under a duty to a third person to devote a performance
to the discharge of a particular duty that the obligor owes to the
obligee and the obligee knows or has reason to know this, the
obligor’s performance is applied to that duty.
259. CREDITOR’S
APPLICATION
(1) Except
as stated in subsection (2) and (3), if the debtor has not directed
application of a payment as between two or more matured debts, the
payment is applied according to a manifestation of intention made
within a reasonable time by the creditor to the debtor.
creditor cannot apply such a payment to debt if
debtor could not have directed its application to that debt,
forfeiture would result from a failure to apply it to another debt
and the creditor knows or has reason to know this, or
debt is disputed or is unenforceable on grounds of public
creditor is owed one such debt in his own right and another in a
fiduciary capacity, he cannot, unless empowered to do so by the
beneficiary, effectively apply to the debt in his own right a
greater proportion of a payment than that borne by the unsecured
portion of that debt to the unsecured portions of both
260. APPLICATION OF
PAYMENTS WHERE NEITHER PARTY EXERCISES HIS POWER
neither the debtor nor the creditor has exercised his power with
respect to the application of a payment as between two or more
matured debts, the payment is applied to debts to which the
creditor could have applied it with jus t regard to the interests
of third persons, the debtor and the creditor.
applying payments under the rule stated in subsection(1), a payment
is applied to the earliest matured debt and ratably among debts of
the same maturity, except that preference is given
debt that the debtor is under a duty to a third person to pay
immediately, and
is not under such a duty,
overdue interest rather than principal, and
(ii) to an
unsecured or precarious debt rather than one that is secured or
certain of payment.
CHAPTER 11
IMPRACTICABILITY OF PERFORMANCE AND FRUSTRATION OF
261. DISCHARGE BY
SUPERVENING IMPRACTICABILITY
after a contract is made, a party’s performance is made
impracticable without his fault by the occurrence of an event the
non-occurrence of which w as a basic assumption on which the
contract was made, his duty to render that performance is
discharged, unless the language or the circumstances indicate the
262. DEATH OR
INCAPACITY OF PERSON NECESSARY FOR PERFORMANCE
existence of a particular person is necessary for the performance
of a duty, his death or such incapacity as makes performance
impracticable is an event the non-occurrence of which was a basic
assumption on which the contract was made.
263. DESTRUCTION,
DETERIORATION OR FAILURE TO COME INTO EXISTE NCE OF THING NECESSARY
FOR PERFORMANCE
existence of a specific thing is necessary for the performance of a
duty, its failure to come into existence, destruction, or such
deterioration as makes performance impracticable is an event the
non-occurrence of which was a basic assumption on which the
contract was made.
264. PREVENTION BY
GOVERNMENTALREGULATION OR ORDER
performance of a duty is made impracticable by having to comply
with a domestic or foreign governmental regulation or order, that
regulation or order is an event the non-occurrence of which was a
basic assumption on which t he contract was made.
265. DISCHARGE BY
SUPERVENING FRUSTRATION
after a contract is made, a party’s principal purpose is
substantially frustrated without his fault by the occurrence of an
event the no-occurrence of which was a basic assumption on which
the contract was made, his remaining duties to render performance
are discharged, unless the language or the circumstances indicate
the contrary.
266. EXISTING
IMPRACTICABILITY OR FRUSTRATION
(1) Where,
at the time a contract is made, a party’s performance under it is
impracticable without his fault because of a fact of which he has
no reason to know and the non-existence of which is a basic
assumption on which the contract is made, no duty to render that
performance arise, unless the language o r circumstances indicate
the contrary.
(2) Where,
at the time a contract is made, a party’s principal purpose is
substantially frustrated without his fault by a fact of which he
has no reason to know and the non-existence of which is a basic
assumption on which the contract is made, no duty of that party to
render performance arises, unless the language or circumstances
indicate the contrary.
267. EFFECT ON OTHER
PARTY’S DUTIES OF A FAILURE JUSTIFIED BY IMPR ACTICABILITY OR
FRUSTRATION
party’s failure to render or to offer performance may, except as
stated in subsection (2), affect the other party’s duties under the
rules stated in &&237 and 238 even though the failure is justified
under the rules stated in this chapter.
rule stated in subsection (1) does not apply if the other party
assumed the risk that he would have to perform despite such a
268. EFFECT ON OTHER
PARTY’S DUTIES OF A PROSPECTIVE FAILURE JUST IFIED BY
IMPRACTICABILITY OR FRUSTRATION
party’s prospective failure of performance may, except as stated in
subsection (2), discharge the other party’s duties or allow him to
suspend performance under the rues stated in &&251(1) and 253(2)
even though the failure would be justified under the rules stated
in this chapter.
rule stated in Subsection (1) does not apply if the other party
assume d the risk that he would have to perform in spite such a
269. TEMPORARY
IMPRACTICABILITY OR FRUSTRATION
impracticability of performance or frustration of purpose
that is only temporary suspends the obligor’s duty to perform while
the impracticability or frustration exists but does not discharge
his duty or prevent it from arising unless his performance after
the cessation of the impracticability or frustration would be
materially more burdensome than had there been no impracticability
or frustration.
&270. PARTIAL IMPRACTICABILITY
Where only
part of an obligor’s performance is impracticable his duty to
render the remaining part is unaffected if
still practicable for him to render performance that is
substantial, taking account of any reasonable substitute
performance that he is un or
obligee, within a reasonable time, agrees to render any remaining
performance in full and to allow the obligor to retain any
performance that as already been rendered.
271. IMPRACTICABILITY
AS EXCUSE FOR NON-OCCURRENCE OF A CONDITI ON
Impracticability excuses the non-occurrence of a condition
if the occurrence of the condition is not a material part of the
agreed exchange and forfeiture would otherwise result.
272. RELIEF INCLUDING
RESTITUTION
(1) In any
case governed by the rules stated in this chapter, either party may
have a claim for relief including restitution under the rules
stated in &&240 an d 377.
(2) In any
case governed by the rules stated in this chapter, if those rules
tog ether with the rules stated in chapter 16 will not avoid
injustice, the court ma y grant relief on such terms as justice
requires including protection of the parties reliance
interests.
&CHAPTER 12 DISCHARGE
BY ASSET OR ALTERATION
THE REQUIREMENT OF CONSIDERATION &
273. REQUIREMENT OF
CONSIDERATION OR A SUBSTITUTE
stated in &&274-77, an obligee’s manifestation of assent to
discharge is not effective unless
made for consideration,
made in circumstances in which a promise would be enforceable with
out consideration, or
(c) it has
induced such action or forbearance as would make a promise
enforceable.
274. CANCELLATION,
DESTRUCTION OR SURRENDER OF A WRITING
obligee’s cancellation, destruction or surrender to the obligor of
a writing of a type customarily accepted as a symbol or as evidence
of his right discharges without consideration the obligor’s duty if
it is done with the manifested intention to discharge
275. CONSENT TO
DISCHARGE DUTY OF RETURN PERFORMANCE
party, before he has fully performed his duty under a contract,
manifests t o the other party his assent to discharge the other
party’s duty to render part or all of the agreed exchange, the duty
is to that extent discharged without condition.
276. ASSENT TO
DISCHARGE DUTY TO TRANSGER PROPERTY
an obligor in possession of identified personal property to
transfer a n interest in that property is discharged without
consideration if the oblige manifests to the obligor his assent to
the discharge of that duty.
RENUNCIATION
written renunciation signed and delivered by the obligee discharges
with out consideration a duty arising out of a breach of
renunciation by the oblibee on his acceptance from the obligor of
some performance under a contract discharges without consideration
a duty to pay damages for a breach that gives rise only to a claim
for damages for partial breach of contract.
SUSTITUTED PERFORMANCE, SUBSTITUTED CONTRACT, ACCORD AND ACCONT
278. SUBSTITUTED
PERFORMANCE
obligee accepts in satisfaction of the obligor’s duty a performance
offered by the obligor that differs from what is due, the duty is
discharged.
obligee accepts in satisfaction of the obligor’s duty a performance
offered by a third person, the duty is discharged, but an obligor
who has not previously assented to the performance for his benefit
may in a reasonable time after learning of it render the discharge
inoperative from the beginning by disclaimer.
& 279. SUBSTITUTED
substituted contract is a contract that is itself accepted by the
obligee in satisfaction of the obligor is existing duty.
substituted contract discharges the original duty and breach of the
substituted contract by the obligor does not give the obligee a
right to enforce t he original duty.
A novation
is a substituted contract that includes as a party one who was
neither the obligor nor the obligee of the original
281. ACCORD AND
SATISFACTION
accord is a contract under which an obligee promises to accept a
state d performance in satisfaction of the obligor’s existing duty.
Performance of the accord discharged the original duty.
performance of the accord, the original duty is suspended unless
the re is such a breach of the accord by the obligor as discharges
the new duty of the obligee to accept the performance in
satisfaction. If there is such a breach the obligee may enforce
either the original duty or any duty under the accord.
(3) Breach
of the accord by the obligee does not discharge the original duty,
b ut the obligor may maintain a suit for specific performance of
the accord, in addition to any claim for damages for partial
282. ACCOUNT
account stated is a manifestation of assent by debtor and creditor
to a stated sum as an accurate computation of an amount due the
creditor. A party’s retention without objection for an unreasonably
long time of a statement o f account rendered by the other party is
manifestation of assent.
account stated does not itself discharge any duty but is an
admission by each party of the facts asserted and promise by the
debtor to pay according to its terms.
TOPIC 3. AGREEMENT OF RESCISSION, RELEASE
AND CONTRACT NOT TO
283. AGREEMENT OF
RESCISSION
agreement of rescission is an agreement under which each party to
discharge all of the other party’s remaining duties of performance
under an existing contract.
agreement of rescission discharge all remaining duties of
performance of both parties. It is a question of interpretation
whether the parties also agree to make restitution with respect to
performance that has been rendered.
release is a writing providing that a duty owed to the maker of the
release is discharged immediately or on the occurrence of a
condition.
release takes effect on delivery as stated in &&101-03 and, subject
to the occurrence of any condition, discharges the duty.
285. CONTRACT NOT TO
contract not to use is a contract under which the obligee of a duty
promises never to sue the obligor or a third person to enforce the
duty or not to do so for a limited time.
(2) Except
as stated in Subsection (3), a contract never to sue discharges the
duty during that time.
contract not to sue one co-obligor bars levy of execution on the
property of the promisee during the agreed time but does not bar an
action or the recovery of judgment against any
co-obligor.
TOPIC A. ALTERATION
286. ALTERATION OF
(1) If one
to whom a duty is owned under a contract alters a writing that is a
n integrate agreement or that satisfies the Statute of Frauds with
respect to t hat contract, the duty is discharged if the alteration
is fraudulent and material.
alternation is material if it would, if effective, vary any party’s
legal relations with the maker of the alteration or adversely
affect that party’s legal relations with a third person. The
unauthorized insertion in a blank space in a writ ing is an
alteration.
&287. ASSENT TO OR FORGIENESS OF
ALTERATION
party, knowing of an alteration that discharges his duty, manifests
assent to the altered terms, his manifestation is equivalent to an
acceptance of a n offer to substitute those terms.
party, knowing of an alteration that discharges his duty, asserts a
right under the original contract or otherwise manifests a
willingness to remain subject to the original contract or to
forgive the alteration, the original contract is
CHAPTER 13 JOINT AND
SEVERAL PROMISORS AND PROMISEES
TOPIC 1. JOINT AND SEVERAL
PROMISORS&
288. PROMISES OF THE
SAME PERFORMANCE
two or more promisors to a contract makes a promise or promises to
the same promisee, the manifested intention of the parties
determines whether they promise that the same performance or
separate performances shall be given.
(2) Unless
a contrary intention is manifested, a promise by two or more
promisors is a promise that the same performance shall be
289. JOINT, SEVERAL,
AND JOINT AND SEVERAL PROMISORS OF THE SAME PERFORMANCE
two or more parties to a contract promise the same performance to
the same promisee, each is bound for the whole performance thereof,
whether his duty is joint, several, or joint and
two or more parties to a contract promise the same performance t o
the same promisee they incur only a joint duty unless an intention
is manifested to create several duties or joint and several
statute in most stated some or all promises which would otherwise
create only joint duties create joint and several
290. COMPULSORY JOINDER
OF JOINT PROMISORS
statute in most states where the distinction between joint duties
and joint and several duties retains significance, and action can
be maintained against one or more promisors who incur only a joint
duty, even though other promisors subject to the same duty are not
served with process.
(2) In the
absence of statute, an action can be maintained against promisors
who incur only a joint duty without joinder of those beyond the
jurisdiction of the court, the representatives of decreased
promisors, or those against whom the duty is not enforceable at the
time of suit.
291. JUDGMENT IN AN
ACTION AGAINST CO-PROMISORS
action against promisors of the same performance, whether their
duties are joint, several, or joint and several, judgment can
properly be entered with respect to another, except that judgment
for one and against another is improper where there has been a
determination on the merits and the liability of on e cannot exist
without the liability of the other.
292. EFECT OF JUDGMENT
FOR OR AGAINST CO-PROMISORS
judgment against one or more promisors does not discharge other
prom isors of the same performance unless joinder of the other
promisors is require d by the rule stated in &290. By statute in
most states judgment against one promisor does not discharge
co-promisors where such joinder is required.
effect of judgment for one or more promisors of the same performanc
e is determined by the rules of res judicata relating to suretyship
or vicarious l iability.
293. EFFECT OF
PERFORMANCE OR SATISFACTION ON CO-PROMISORS
partial performance or other satisfaction of the contractual duty
of a promisor discharges the duty to the obligee of each other
promisor of the same performance to the extent of the amount or
value applied to the discharge of the duty of the promior who
renders it.
294. EFFECT OF
DISCHARGE ON CO-PROMISORS
(1) except
as stated in &295, where the obligee of promises of the same
performance discharges one promisor by release, recission or accord
and satisfaction,
co-promisors who are bound only by a joint duty are discharged
unless the discharged promisor is a surety for the
co-promisors who are bound by joint and several duties or by
several duties are not discharged except to the extent required by
the law of suretyship.
statute in many states a discharge of one promisor does not
discharge other promisors of the same performance except to the
extent required by the law of suretyship.
consideration received by the obligee for discharge of one promisor
discharge the duty of each other promisor of the same performance
to the exte nt of the amount or value received. An agreement to the
contract is not effective unless it is made with a surety and
expressly preserves the duty of his principal.
295. EFFECT OF CONTRACT
NOT TO SUE; RESERVATION OF RIGHTS
the obligee of promises of the same performance contracts not to s
ue one promisor, the other promisors are not discharged except to
the extent required by the law of suretyship.
which purport to release or discharge a promisor and also to
reserve rights against other promisors of the same performance have
the effect of a contract not to sue rather than a release or
discharge.
consideration received by the obligee for a contract not to sue one
promisor discharges the duty of each other promisor of the same
performance t o the extent of the amount or value received. An
agreement to the contrary is not effective unless it is made with a
surety and expressly preserves the duty of his
principal.
296. SURVIVORSHIP OF
JOINT DUTIES
death of one of two or more promisors of the same performance in a
contract, the estate of the decreased promisor is bound by the
contract, whether the duty was joint, several, or joint and
TOPIC 2. JOINT AND SEVERAL
PROMISEES&
297. OBLIGEES OF THE
SAME PROMISED PERFORMANCE
a party to a contract makes a promise to two or more promisees or
for the benefit of two or more beneficiaries, the manifested
intention of the p arties determines whether he promises the same
performance to all, a separate performance to each, or some
combination.
(2) Except
to the extent that a different intention is manifested or that the
interests of the obligees in the performance or in the remedies for
breach are distinct, the rights of obligees of the same performance
are joint.
298. COMPULSORY JOINDER
OF JOINT OBLIGEES
action based on a joint right created by a promise, the promise by
making appropriate objection can prevent recovery of judgment
against him unless there are joined either as plaintiffs or as
defendants all the surviving join t obligees.
(2) Except
in actions on negotiable instruments and except as stated in &300,
any joint obligee, unless limited by agreement may sue in the name
of all the joint obligees for the enforcement of the promise by a
money judgment.
299. DISCHARGE BY OR
TENDER TO ONE JOINT OBLIGEE
where the promise is made in a negotiable instrument and except as
stated in &300, any joint obligee, unless limited by agreement, has
power to discharge the promisor by receipt of the promised
performance or by release or otherwise, and tender to one joint
obligee is equivalent to a tender to all.
300. EFFECT OF
VIOLATION OF DUTY TO A CO-OBLIGEE
obligee attempts or threatens to discharge the promisor in
violation of his duty to a co-obligee of the same perfomance, the
co-obligee may obtain an injunction forbidding the
discharge.
discharge of the promisor by an obligee in violation of his duty to
a co-o bligee of the same performance is violable to the extent
necessary to protect t he co-obligee’s interest in the performance,
except to the extent that the promisor has given value or otherwise
changed his position in good faith and without knowledge or reason
to know of the violation.
301. SUREVIVORSHIP OF
JOINT RIGHTS
death of a joint obligee, unless a contrary intention was
manifested, th e surviving obligees are solely entitled as against
the promisor to receive perf ormance, to discharge the promisor, or
to sue for the enforcement of the promise by a money judgment. On
the death of the last surviving obligee, only hi s estate is so
CHAPTER 14 CONTRACT
BENEFICIARIES&
302. INTENDED AND
INDCIDENTAL BENEFICIARIES
(1) Unless
otherwise agreed between promior and promisee, a beneficiary of a
promise is an intended beneficiary if recognition of a right to
performance in the beneficiary is appropriate to effectuate the
intention of the parties and either
performance of the promise will satisfy an obligation of the
promiseet o pay mone or
circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
incidental beneficiary is a beneficiary who is not an intended
beneficiar y.
303. CONDITIONAL
PROMISES; PROMISES UNDER SEAL
statements in this chapter are applicable to both conditional and
unconditional promises and to sealed and unsealed
304. CREATION OF DUTY
TO BENEFICIARY
in a contract creates a duty in the promisor to any intended
benefic iary to perform the promise, and the intended beneficiary
may enforce the duty.
305. OVERLAPPING DUTIES
TO BENEFICIARY AND PROMISEE
promise in a contract creates a duty in the promisor to the
promisee to perform the promise even though he also has a similar
duty to an intended be neficiary.
or partial satisfaction of the promisor’s duty to the beneficiary
satisf ied to that extent the promisor’s duty to the
306. DISCLAIMER BY A
BENEFICIARY
beneficiary who has not previously assented to the promise for his
benefit may in a reasonable time after learning of its existence
and terms render any duty to himself inoperative from the beginning
by disclaimer.
307. REMEDY OF SPECIFIC
PERFORMANCE
specific performance is otherwise an appropriate remedy, either the
promisee or the beneficiary may maintain a suit for specific
enforcement of a duty owed to an intended beneficiary.
308. IDENTIFICATION OF
BENEFICIARIES
essential to the creation of a right in an intended beneficiary
that he be identified when a contract containing the promise is
309. DEFENSES AGAINST
THE BENEFICIARY
promise creates no duty to a beneficiary unless a contract is
formed between the promi and if a contract is
voidable or unenforc eableat the time of its formation the right of
any beneficiary is subject to the infirmity.
contract ceases to be binding in whole or in part because of
impractic ability, public policy, non-occurrence of a condition, or
present or prospective failure of performance, the right of an
beneficiary is to that extent discharged or modified.
(3) Except
as stated in Subsection (1) and (2) and in &311 or as provided by t
he contract, the right of any beneficiary against the promisor is
not subject to the promisor’s claims or defenses against the
promisee or to the promisee’s cl aims or defenses against the
beneficiary.
beneficiary’s right against the promisor is subject to any claim or
defense arising from his own conduct or agreement.
310. REMEDIES OF THE
BENEFICIARY OF A PROMISE TO PAY THE PROMISE E’S DEBT; REIMBURSEMENT
OF PROMISEE
an intended beneficiary has an enforceable claim against the
promisee, he can obtain a judgment or judgments against either the
promisee or th e promisor or both based on their respective duties
to him. Satisfaction in whole or in part of either of these duties,
or of a judgment thereon, satisfies to t hat extent the other duty
or judgment, subject to the promisee’s right of subr
(2) To the
extent that the claim of an intended beneficiary is satisfied from
as sets of the promisee, the promisee has a right of reimbursement
from the promisor, which may be enforced directly and also, if the
beneficiary’s claim is full y satisfied, by subrogation to the
claim of the beneficiary against the promisor and to any judgment
thereon and to any security therefore.
311. VARIATION OF A
DUTY TO A BENEFICIARY
Discharge or modification of a duty to an intended beneficiary by
conduct of the promisee or by a subsequent agreement between
promisor and promisee is ineffective if a term of the promise
creating the duty so provides.
&(2) In the absence of
such a term, the promisor and promisee retain power to discharge or
modify the duty by subsequent agreement.
(3) Such a
power terminates when the beneficiary, before he receives
notification of the discharge or modification, materially change
his position in justifiable reliance on the promise or brings suit
on it or manifests assent to it at the r equest of the promisor or
(4) If the
promisee receives consideration for an attempted discharge or
modification of the promisor’s duty which is ineffective against
the beneficiary, the beneficiary can assert a right to the
consideration to received. The promisro’s duty is discharged to the
extent of the amount received by the beneficiary.
312. MISTAKES AS TO
DUTY TO BENEFICIARY
The effect
of an erroneous belief of the promisor or promisee as to the
existence or extent of a duty owed to an intended beneficiary is
determined by the rules making contracts voidable for
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