Time budget
- Floor
- Quiz (0:00–0:25) + item-level debrief (0:25–0:55). The quiz happens. The debrief covers every item with the doctrinal trap explained. ~55 min.
- Target
- Floor + skills assessment (0:55–1:40) at scheduled scope. The deliverable is collected at the end. ~85 min.
- Ceiling
- Target + bridge (1:40–1:50) — wrap and preview of the next module's central problem. Full ~110 min.
By the end of this class, you can
- Administer the Module VI capstone covering conditions, performance, breach, excuse, and modification.
- Diagnose recurring confusions among substantial performance, material breach, and excuse and assign focused review.
This meeting is the Module VI Capstone. The Capstone structure block below sets the time blocks for the meeting.
Why a capstone here
Module VI covers conditions, substantial performance, repudiation, excuse, and modification. The adequate-assurance letter is the doctrine’s most procedurally underused tool: a worried party with reasonable grounds for insecurity can demand assurance under R2d § 251 and UCC § 2-609 before a counterparty’s wobble becomes a full breach. Drafting the demand requires the student to use the doctrine procedurally (the right exists only when invoked properly) and substantively (the demand has to be reasonable in scope). Both skills appear on the bar and in commercial practice.
What the module ties together
One question runs through all of Module VI: when a performance fails, what does the law ask first? The taxonomy answers in order. Was there a duty at all, or was performance subject to a condition that never occurred (conditions; Kingston v. Preston)? If there was a duty, was it substantially performed, or was the breach material (Jacob & Youngs v. Kent)? Was the duty discharged before performance came due — by an excuse doctrine when a supervening event upset a basic assumption (Taylor, Transatlantic, Krell), or by a valid modification (Alaska Packers, Angel)? And if a party signaled in advance that it would not perform, was that a repudiation triggering the other side’s right to demand assurance (Hochster v. De La Tour; R2d § 251, UCC § 2-609)? The capstone tests whether students can route a fact pattern through that sequence rather than reaching for the first doctrine that looks familiar.
What you should be able to do
Classify a condition on both the timing and source axes; distinguish substantial performance from material breach; choose the correct excuse doctrine and explain why excuse is narrow; tell an enforceable modification from a coerced one; and draft an adequate-assurance demand that is both procedurally valid and reasonable in scope. The next module turns from whether a duty was broken to what the breach is worth — money damages.
Capstone structure for Performance & Breach
In-class MCQ via Brightspace, about 20–25 items, 25 minutes. Counts 5% toward the semester grade. Students with extended-time accommodations take the same quiz in a separate room; they rejoin the classroom for the skills assessment block once they finish.
Walk through each MCQ. For each: the right answer + why; the strongest wrong answer + why it's wrong; the doctrinal trap the question was testing. The debrief uses the quiz itself as the synthesis text for the module.
A 45-minute supervised drafting, negotiation, redlining, or damages-computation exercise tied to the module's central problem. The exercise runs as part of class participation, not as a discrete graded instrument.
Wrap; preview the next module's central problem; frame the doctrinal pivot. On the final-module Capstone of each semester, the bridge block becomes exam-prep orientation: rubric, time-budget guidance, study method.
Slide deck
Spacebar / arrow keys to advance. Press F for fullscreen. Click Print / PDF for handouts. PPTX export is professor-only.
Cases under review
Consolidating prior coverage. Re-read the holdings; the Capstone quiz draws here.
- Kingston v. Preston 2 Doug. 689, 99 Eng. Rep. 437 (K.B. 1773) Covenants in a contract are mutual and dependent where the performance of one is in the nature of a condition precedent to the performance of the other. Where dependent covenants exist, a party need not perform until the other has performed or tendered performance.
- Morrison v. Bare 2007-Ohio-6788 (Ohio Ct. App. Dec. 19, 2007) A condition is not the same as a promise. The non-occurrence of a condition discharges the duty that the condition qualifies but is not itself a breach. A buyer to whom a condition has failed cannot insist on a renegotiated price; the buyer's options are to walk away or to waive the condition and proceed.
- Jacob & Youngs, Inc. v. Kent 230 N.Y. 239, 129 N.E. 889 (1921) Substantial performance of an entire contract satisfies the constructive condition of exchange and entitles the performer to the contract price less damages for the deficiency. Where the breach is trivial and innocent, damages are measured by diminution in value rather than the cost of completion, particularly where completion would involve economic waste.
- Hochster v. De La Tour 2 El. & Bl. 678, 118 Eng. Rep. 922 (Q.B. 1853) A renunciation of a contract before the time fixed for performance is itself a breach. The injured party may sue immediately on the repudiation; she is not required to wait for the performance date and is free to arrange substitute transactions in the interval.
- Krell v. Henry [1903] 2 K.B. 740 (C.A.) Where the principal purpose of a contract is frustrated by a supervening event not the fault of either party and not within the risks the parties allocated, performance is excused. Frustration of purpose differs from impossibility: performance remains possible, but its value has evaporated.
- Taylor v. Caldwell 3 B. & S. 826, 122 Eng. Rep. 309 (K.B. 1863) Where the continued existence of a specific thing essential to performance is implicitly assumed by the parties, the destruction of that thing without fault of either party discharges both from performance. This is the doctrine of impossibility by supervening destruction of the subject matter.
- Transatlantic Financing Corp. v. United States 363 F.2d 312 (D.C. Cir. 1966) Commercial impracticability requires (1) a supervening event, (2) the non-occurrence of which was a basic assumption of the contract, and (3) the event made performance impracticable without the affected party's fault. Increased cost alone is not enough; the increase must transform the bargain into one fundamentally different from that contemplated.
- Alaska Packers' Association v. Domenico 117 F. 99 (9th Cir. 1902) A modification of an existing contract demanding additional compensation for the same performance is unenforceable for lack of consideration (pre-existing duty rule) and, where coerced by the obligor's leverage over a counterparty with no realistic alternative, is also voidable as the product of duress.
- Angel v. Murray 113 R.I. 482, 322 A.2d 630 (1974) A modification of an executory contract is enforceable without new consideration where (1) the modification was made before performance was complete on either side, (2) the parties voluntarily agreed, (3) the modification is fair and equitable in view of unanticipated circumstances, and (4) it does not run against statute or public policy. (Restatement (Second) § 89.)
Notes
Module VI's scored MCQ runs in the first block. The skills assessment is the Adequate Assurance Letter exercise (R2d § 251 / UCC § 2-609). The underlying hypothetical is still in draft — see the linked skills assessment page.