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failure, taking account of all the circumstances
including any reasonable assurances; [and]
(e) the extent to which the behavior of the
party failing to perform or to offer to perform
comports with standards of good faith and fair
dealing.” [Id. at 109, quoting 2 Restatement,
Contracts 2d, sec. 241 (1981).]
Although the above circumstances may by themselves indicate the
materiality or nonmateriality of a breach, the standard of
materiality is necessarily somewhat imprecise and flexible, and
should be applied in light of the facts of each case in such a
way as to further the purpose of securing for each party his
expectation of an exchange of performances. 2 Restatement, supra
sec. 241 cmt. a.
2. Doctrine of Express Conditions
Under the “doctrine of express conditions” analysis endorsed
by the Court of Appeals in Robinette, an express condition of a
contract is subject to a requirement of strict performance.
Robinette v. Commissioner, 439 F.3d at 462 (citing 13 Williston
on Contracts, sec. 38:6 (4th ed. 2000)). When an express
condition fails to occur, the performance subject to that
condition does not become due unless the nonoccurrence of the
condition is excused. 2 Restatement, supra sec. 225(1). Under
that doctrine, a failure to meet express conditions may be
excused if they are immaterial to the exchange and if their
enforcement would result in a disproportionate forfeiture.
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Last modified: May 25, 2011