R2d § 237
Effect on Other Party's Duties of a Failure to Render Performance
It is a condition of each party's remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time or due simultaneously.
Professor's notes
Element: it is a condition of each party's remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.
This is the constructive condition of exchange + the substantial-performance rule.
Jacob & Youngs v. Kent operationalizes: Reading pipe vs. Cohoes pipe; trivial breach did not give Kent the right to withhold the contract price. Substantial performance discharged the constructive condition; damages measured by diminution in value.
Common misunderstanding: students think any breach excuses performance. Only a MATERIAL uncured breach does (§ 241 factors). Trivial breach gives damages, not the right to walk. Express conditions are NOT subject to substantial performance: only constructive conditions are. The Cardozo move is to read ambiguous specification as a promise (not condition) to allow substantial performance.
Cases that operationalize this rule
Text
R2d § 237. Effect on Other Party’s Duties of a Failure to Render Performance.
It is a condition of each party’s remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time or due simultaneously.
[VERIFICATION REQUIRED: subsection text drafted from memory; cite-check against ALI Restatement (Second) of Contracts official text before publication]