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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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The Order of Performance; Constructive Conditions

The Order of Performance; Constructive Conditions

Chapter:
(p.669) Forty-Seven The Order of Performance; Constructive Conditions
Source:
Foundational Principles of Contract Law
Author(s):

Melvin A. Eisenberg

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199731404.003.0047

Chapter 47 concerns the order in which each party to a contract must render or tender his or her performance. The significance of this issue is that if party A must render or tender performance before or simultaneously with party B, then unless A has performed or tendered B, is not obliged to perform and will not be in breach for not performing.. Where neither the contract nor the circumstances provide an answer to the order-of-performance issue the answer is supplied by implication of law. Generally speaking the law favors the implication of simultaneous performance, if that can be achieved. If it cannot reasonably be implied that the parties’ performances are to be simultaneous, the usual implication is that if one party’s performance takes time and the other party’s performance does not, the performance that takes time must be rendered first.

Keywords:   order of performance, constructive conditions, tender of performance, simultaneous performance, express condition

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