Will K. Ng - Page 11

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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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