I’ve got a problem with the notion of “curing” breach of a contract obligation.
(I of course wouldn’t use time is of the essence to address that concern see MSCD or this 2009 post.) But that’s moot, given that I don’t use catch-all cure provisions.Īnd here’s a bonus issue: If you can preclude a party’s right to cure, shouldn’t that eliminate the concern that has given rise to “time is of the essence” provisions? Well, perhaps, but since you can’t count on a court’s not cutting that party some slack, adding a don’t-cut-any-slack provision would be prudent. Instead, I’d refer to feasibility of cure. Capability refers to one’s ability to take an action-a breach isn’t capable of anything. I don’t think it makes sense.īy the way, the phrase capable of being cured is odd. Yes, that language would eliminate the most blatant dysfunction you see in cure provisions, but beyond that, I prefer not to give a party a right to cure across the board. That relates to my response to Harley’s other point, which is that including “capable of being cured” language should address my concerns. In most cases a “no replacement” clause should be limited to preclude only a cure after the time for performance has expired.Īs a practical matter, the contracts for sale of goods that I’ve worked on recently give the seller the opportunity to fix nonconforming goods, although it doesn’t use the word “cure.” That’s consistent with my preference for providing for “cure”-whether or not you use that word-only in specific contexts. Such a clause should be conspicuous and called to the seller’s attention if it is inconsistent with a prior course of dealings or trade usage. Such terms include a “no replacement” clause which precludes the seller from curing a nonconforming tender.
#Cure a breach meaning code
Anzivino, Uniform Commercial Code Transaction Guide § 9:8 has to say (footnotes omitted):Īn express term can also be drafted to restrict a seller’s statutory right to cure. Finally, the parties can vary the section 2-508 standards by agreement. Furthermore, it applies only in specified contexts, as opposed to permitting cure of all breached obligations. Uniform Commercial Code section 2-508 gives the seller the right to cure a nonconforming tender in certain circumstances. Nimmer, Drafting Effective Contracts: A Practitioner’s Guide § 5.09 (2014), says, “Do not assume that the law will provide an opportunity to cure if one is not expressly provided it may not.” It cites to that effect Creative Extruded Prods., Inc. I haven’t yet researched this extensively, but I’ve found enough to suggest that drafters shouldn’t assume that that’s the case.įor example, Robert A. He focuses on the notion that courts will allow for cure, regardless of what the contract says.
#Cure a breach meaning update
Updated August 9, 2014: Comments by Harley Meyer have prompted me to update this post.
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