True/False
Indicate whether the sentence or statement is true
or false.
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| 1. | The
defendant’s no breach—justification response is more similar to defendant’s
no
breach—compliance response than to the defendant’s
no breach—excuse response.
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| 2. | In
the defendant’s no breach—justification response, the defendant
admits
nonperformance.
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| 3. | In
the defendant’s no breach—justification response, the defendant contends that his
or
her breach was justified by the plaintiff’s breach.
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| 4. | Defendant’s strategy in raising the no breach—justification response
is to turn the table
on the plaintiff so the plaintiff, rather than the defendant, is the
breaching party and
since the defendant has not breached, the plaintiff cannot maintain a
breach of contract
action against the defendant.
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| 5. | Whether a contract may require one performance or a number of performances
may
affect the third step of the no breach—justification analysis, that is,
whether the
plaintiff was in breach and therefore the plaintiff’s cause of
action for breach of
contract.
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| 6. | Even
if the plaintiff has breached the contract, the defendant might not be able to
use
the plaintiff’s breach in its no breach—justification response if the
defendant has
waived the plaintiff’s breach.
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| 7. | Even
if the plaintiff has breached the contract, the defendant might not be able to
use
the plaintiff’s breach in its no breach—justification response if the
plaintiff has relied on
the defendant’s actions so as to estoppel the defendant
from asserting the plaintiff’s
breach.
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| 8. | The
defendant may have waived the plaintiff’s breach if the plaintiff has relied on
the
defendant’s actions.
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| 9. | To
maintain a no breach—justification response, the defendant must not only
prove
that the plaintiff breached the contract but also that the magnitude
of the plaintiff’s
breach was such as to justify the defendant in not performing
his or her contractual
duty.
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| 10. | If
the plaintiff breaches the contract before the defendant has a duty to perform,
the
defendant is justified in withholding his or her performance.
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| 11. | If
the buyer of goods wrongfully fails to make a payment before delivery, the seller
may
withhold delivery of the goods and by doing so would, in effect, be able to use a
no
breach—justification response if sued by the buyer for
failure to deliver.
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| 12. | If
the seller of goods fails to deliver the goods, the buyer may withhold payment and
by
doing so would, in effect, be able to use a no breach—justification
response if sued by
the seller for failure to pay.
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| 13. | A
contracting party who could not maintain a breach of contract action in light of
the
other party’s potentially successful no breach—justification response
could succeed in a
restitution cause of action if he or she has conferred a benefit on
the other party and it
would be unjust to permit the receiving party to retain the
benefit without
compensating the party who conferred it.
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| 14. | UCC 2–718 requires the seller of goods to return to the buyer so much of
the deposit
or down payment as exceeds the damages that the seller has in fact
sustained.
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