Contract Law for Paralegals: Traditional and E-Contracts © 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Third-Party Rights and Discharge Chapter 7

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Privity of Contract The state of two specified parties being in a contract. Contracting parties have a legal obligation to perform the duties specified in their contract. If one party fails to perform as promised, the other party may enforce the contract and sue for breach.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Third Party Rights Third parties generally do not acquire any rights under other people’s contracts. The exceptions are: 1. Assignees to whom rights subsequently are transferred, and 2. Intended third-party beneficiaries to whom the contracting parties intended to give rights under the contract at the time of contracting.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Assignment of Rights Assignment – The transfer of contractual rights by the obligee to another party. Assignor – The obligee who transfers the right. Assignee – The party to whom the right has been transferred.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Assignment of a Right Contract No. 1: Creditor (Obligee) Contract No. 2: Assignor Debtor(Obligor) Assignee Contract No. 1 Loan of Money Note (Promise to pay) Right to enforce payment of note Contract No. 2 Assignment of note

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Rights That Can and Cannot Be Assigned Personal Service Contracts Contracts for the provision of personal services are generally not assignable. Assignment of Future Rights Usually, a person cannot assign a currently nonexistent right that he or she expects to have in the future.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Rights That Can and Cannot Be Assigned (continued) Contracts Where Assignment Would Materially Alter the Risk A contract cannot be assigned if the assignment would materially alter the risk or duties of the obligor. Assignment of Legal Actions Legal actions involving personal rights cannot be assigned.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Effect of An Assignment of Rights Where there has been an assignment of a right, the assignee “stands in the shoes of the assignor” and is entitled to performance from the obligor. The unconditional assignment of a contract right extinguishes all the assignor’s rights.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Notice of Assignment To protect his or her rights, the assignee should immediately notify the obligor that: 1. The assignment has been made, and 2. Performance must be rendered to the assignee.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Anti-Assignment Clause A clause that prohibits the assignment of rights under the contract. Used when obligor doesn’t want to deal with or render performance to an unknown third party.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Approval Clause A clause that permits the assignment of the contract only upon receipt of an obligor’s approval. Approval cannot be unreasonably withheld.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Successive Assignment of the Same Right The American Rule The English Rule The Possession of Tangible Token Rule

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Delegation of Duties Delegation – A transfer of contractual duties by the obligor to another party for performance. Delegator – The obligor who transferred his or her duty. Delegatee – The party to whom the duty has been transferred.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Delegation of a Duty Contract No. 1: Promisor (Obligor) Contract No. 2: Delegator Promisee(Obligee) Delegatee Contract No. 1 Promise to Perform Duty of performance Contract No. 2 Delegation of duties

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Duties that Can and Cannot Be Delegated If the obligee has a substantial interest in having the obligor perform the acts required by the contract, duties may not be transferred. Personal service contracts calling for the exercise of personal skills, discretion, or expertise. Contracts whose performance would materially vary if the obligor’s duties were delegated.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Effect of Delegation of Duties If the delegation is valid, the delegator remains legally liable for the performance of the contract. If the delegatee does not perform properly, the obligee can sue the obligor-delegator for any resulting damages.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Assumption of Duties When a delegation of duties contains the term assumption, I assume the duties, or other similar language: The delegatee is legally liable to the obligee for nonperformance.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Declaration of Duties If the delegatee has not assumed the duties under a contract, the delegatee is not legally liable to the obligee for nonperformance.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Anti-Delegation Clause Parties to a contract can opt to include this clause. The courts will generally enforce the clause. Courts may allow an exception if the duties are totally impersonal in nature.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Assignment and Delegation Occurs when there is an assignment of both the rights and the duties under a contract. If the contract contains only allows an assignment, the courts have held that there is also a delegation.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Third-Party Beneficiaries Third parties sometimes claim rights under others’ contracts. Such third parties are either: Intended third-party beneficiaries, or Incidental third-party beneficiaries.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Intended Beneficiaries A third party who is not in privity of contract. Has rights under the contract. Can enforce the contract against the obligor. Intended beneficiaries are classified as: Donee beneficiaries or Creditor beneficiaries.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Donee Beneficiaries Donee Beneficiary Contract A contract entered into with the intent to confer a benefit or gift on an intended third party. Donee Beneficiary The third party on whom the benefit is to be conferred.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Donee Beneficiary Contract Life Insurance Company (Promisor) Insured (Promisee) Original Contract Right to enforce contract (Life insurance policy) Named Beneficiary (Donee Beneficiary)

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Creditor Beneficiaries A creditor beneficiary contract usually arises when: 1. A debtor borrows money from a creditor to purchase some item. 2. The debtor signs an agreement to pay the creditor the amount of the loan plus interest. 3. The debtor sells the item to another party before the loan is paid. 4. The new buyer promises the debtor that he or she will pay the remainder of the loan amount to the creditor.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Creditor Beneficiary Contract Contract No. 1: Creditor Contract No. 2: Creditor Beneficiary First Buyer Debtor Second Buyer Contract No. 1 First sale of goods Note (Promise to pay) Right to recover payment Second sale of goods Promise to pay debt to creditor Contract No. 2

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Incidental Beneficiary A party who is unintentionally benefited by other people’s contracts. An incidental beneficiary has no rights to enforce or sue under other people’s contracts.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Covenants An unconditional promise to perform. Nonperformance of a covenant is a breach of contract that gives the other party the right to sue.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Conditions A qualified or conditional promise that becomes a covenant is met.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Conditions of Performance Conditions Precedent Conditions Subsequent Concurrent Conditions

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Conditions Precedent Event that must occur before a party is obliged to perform under a contract. May be based upon meeting the party’s satisfaction. Personal satisfaction test Reasonable person test Time of performance may be a condition precedent.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Conditions Subsequent This occurs when a contract provides that the occurrence or nonoccurrence of a specific event excuses performance of a contractual duty.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Concurrent Conditions Parties to a contract must simultaneously render performance. Each party’s absolute duty to perform is based on the other party’s absolute duty to perform.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Express and Implied Conditions Express conditions exist if parties expressly agree to terms. Implied-in-fact conditions are implied from the circumstances surrounding the contract and conduct of the parties.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Discharge of Performance A party’s duty to perform under a contract may be discharged by: Mutual agreement of the parties Impossibility of performance Force Majeure clauses Commercial impracticability Operation of the law

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Discharge by Agreement The parties to a contract may mutually agree to discharge or end their contractual duties. Mutual Rescission Substituted Contract Novation Accord and Satisfaction

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Discharge by Impossibility Contracts may become impossible to perform. Death or Incapacity of promisor Destruction of subject matter Supervening illegality

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Force Majeure Clauses The parties may agree in their contract that certain events will excuse nonperformance of the contract. These clauses are called force majeure clauses. Natural disasters Labor strikes Shortages of raw materials

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Commercial Impracticability Most states recognize this doctrine as an excuse for nonperformance. Excuses performance if an unforseeable event makes it impracticable to perform. Examined on a case-by-case basis.

Reed/Cheeseman: Contract Law for Paralegals© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Discharge by Operation of Law Certain legal rules discharge parties from performing contractual duties. Statutes of Limitations Bankruptcy Alteration of the Contract