Texas Real Estate Contracts 4 th Edition © 2015 OnCourse Learning

Chapter 7: Amendment or Termination © 2015 OnCourse Learning

Amendment, in general Amendment is a fair way to correct a written contract to accurately reflect the terms of the intended agreement. © 2015 OnCourse Learning

Construction of Contracts The parol evidence rule states that terms set forth in a writing intended by the parties to be a final expression of their agreement may not be contradicted or modified by evidence of a prior agreement or a contemporaneous oral agreement. © 2015 OnCourse Learning

Termination, in general Termination of the contract can be either mutual or one sided. Mutual termination of the contract is often referred to as mutual rescission. © 2015 OnCourse Learning

Discharge of Contract, in general Discharge of the contract is simply where one party to the contract terminates the contract with some valid legal excuse. © 2015 OnCourse Learning

Discharge by Performance A contract will be discharged when all parties to the contract have performed their obligations. © 2015 OnCourse Learning

Discharge by Lapse of Time A contract may also be discharged where there has been a lapse of time. © 2015 OnCourse Learning

Discharge by Modification When the original contract is modified by agreement of the parties, the terms of the original contract that were modified are discharged. © 2015 OnCourse Learning

Discharge by Breach Where one party to a contract has breached the contract, the remaining parties to the contract are discharged from performance under the contract. © 2015 OnCourse Learning

Discharge by Condition There may be instances where a party to the contract is discharged from performing under the contract due to a contingency or condition in the contract. © 2015 OnCourse Learning

Condition Precedent A condition precedent is a condition that must occur before a party to a contract is obligated to perform under the contract. © 2015 OnCourse Learning

Condition Subsequent A condition subsequent is a condition that exists after the parties enter into a contract that will terminate one of the parties’ obligations to perform under the contract. © 2015 OnCourse Learning

Discharge by Impossibility or Frustration of Purpose © 2015 OnCourse Learning

Impossibility of Performance Under the doctrine of impossibility of performance, one party's duty to perform under the contract is discharged when, without any fault of that party, it becomes impossible to perform. © 2015 OnCourse Learning

Death or Insanity of a Party to the Contract Death or insanity of a party to a contract does not normally discharge the contract unless the contract is for personal services. © 2015 OnCourse Learning

Frustration of Purpose With frustration of purpose, nothing has happened to impede performance, but the purpose has been frustrated in some way by the happening of an event. © 2015 OnCourse Learning

Discharge by Agreement of the Parties A contract can be discharged by the mutual agreement of the parties to that contract. © 2015 OnCourse Learning

Substitution A substitution changes one party for another under the contract, but the party who is substituted is still liable under the contract. If the new party fails to perform as promised, both the new party and the original party will be responsible for the damages. © 2015 OnCourse Learning

Novation A novation substitutes a new party for an original party to the contract and completely releases the original party to the contract from all liability under that contract. © 2015 OnCourse Learning

Accord and Satisfaction An accord is an executory agreement to accept performance in future satisfaction of a contractual duty. Satisfaction is the time when the accord is fully performed. © 2015 OnCourse Learning

Breach of Contract, in general Breach of contract will occur anytime a party to the contract fails to perform without a legal excuse. © 2015 OnCourse Learning

Federal Jurisdiction federal question jurisdiction diversity of citizenship jurisdiction © 2015 OnCourse Learning

Texas Jurisdiction Justice court has a jurisdictional amount of between $0.01 and $10,000; however, it has exclusive jurisdiction over those cases from $0.01 to $500. The justice court has exclusive subject matter jurisdiction over forcible entry and detainer actions, more commonly referred to as eviction proceedings. © 2015 OnCourse Learning

Texas Jurisdiction cont. The constitutional county court has a jurisdictional amount of between $ and $10,000 and therefore overlaps the jurisdiction of the justice court. The county court at law has a jurisdictional amount of between $ and $200,000. © 2015 OnCourse Learning

Texas Jurisdiction Cont. The district court has a jurisdictional amount in excess of $500. This court has subject matter jurisdiction over suits – for enforcement of a lien on land, – on behalf of the State for escheat, – for divorce, – for eminent domain, – for recovery of land (trespass to try title), and – for trial of the right to property valued at $500 or more and levied on under a writ of execution, sequestration, or attachment. © 2015 OnCourse Learning

General Breach A general breach of contract arises where a party to the contract fails to perform on the date and time indicated for performance. © 2015 OnCourse Learning

Anticipatory Repudiation Anticipatory repudiation, or anticipatory breach, is a breach of contract that occurs before the time for performance is due under the contract. © 2015 OnCourse Learning

Remedies for Breach of Contract © 2015 OnCourse Learning

Damages Damages are pecuniary compensation that can be recovered in a court of law by a person who has suffered a loss as a result of a breach of contract. © 2015 OnCourse Learning

Benefit of the Bargain Damages The most common way in which damages are calculated in breach of contract actions is by measuring the benefit that the non- defaulting party would have received from the contract. © 2015 OnCourse Learning

Restitution Damages Under the theory of restitution, the non- defaulting party to a contract can recover for the value of services he or she gave to the non-defaulting party irrespective of whether the non-defaulting party would have lost money on the contract and would have been unable to recover in a suit on the contract. © 2015 OnCourse Learning

Mitigation of Damages Mitigation of damages refers to the principle that an injured party cannot recover damages that could reasonably have been avoided. © 2015 OnCourse Learning

Substantial Performance Substantial performance is the doctrine that recognizes that performance under a contract that deviates slightly from the terms of the contract will be considered complete performance under the contract less the damages that result from deviation from the contract. © 2015 OnCourse Learning

Specific Performance Specific performance is a remedy that requires exact performance by the defaulting party under the contract. © 2015 OnCourse Learning

Rescission Rescission is cancellation of the contract. © 2015 OnCourse Learning

Liquidated Damages Liquidated damages is the sum that a party to a contract agrees to pay if he or she breaches the contract and is used to predict damages if the contract is breached. © 2015 OnCourse Learning