4. Does the new count state a claim upon which relief can be granted?

Assume that on January 2 of the following year the friend's suit has not come to trial, the man has not paid the note, the friend has retained a lawyer, and the lawyer, with leave of court, amends the complaint to add a second count to enforce the promise the man made in the April 1 agreement.

A man owed his friend $1,000, plus interest at 8% until paid, on a long-overdue promissory note, collection of which would become barred by the statute of limitations on June 30. On the preceding April 1, the man and his friend both signed a writing in which the man promised to pay the note in full on the following December 31, plus interest at 8% until that date, and the friend promised not to sue on the note in the meantime. The friend, having received some advice from his nonlawyer brother-in-law, became concerned about the legal effect of the April 1 agreement. On May 1, acting pro se as permitted by the rules of the local small claims court, he filed suit to collect the note.

Yes, because the man's failure to pay the note, plus interest, on December 31 makes the friend's breach of promise not to sue before that date no longer material
Yes, because the man's April 1 promise is enforceable by reason of his moral obligation to pay the debt
No, because such relief would undermine the policy of the statute of limitations against enforcement of stale claims
No, because the man's April 1 promise was lawfully conditioned upon the friend's forbearing to sue prior to December 31

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A constructive condition is not one that is agreed on by the parties, but that courts impose as a matter of law in order to ensure fairness. The distinction between an express and a constructive condition is extremely important in relation to performance. Strict compliance with express conditions is ordinarily required. However, constructive conditions will only require substantial compliance to be satisfied.

The principal use of constructive conditions is in bilateral contracts. In a bilateral contract, each party makes one or more promises to each other, and each party's substantial performance of his promise is generally a constructive condition to the performance of any subsequent duties by the other party. The parties to a bilateral contract do not always make clear the order in which performance is to occur.

If each party's promised performance can occur at the same time as the other's, the court will normally require that the two occur simultaneously. In this situation, the two performances are concurrent conditions, which means that each party's duty to perform is constructively conditioned upon the other's manifestation of an ability and willingness to perform. The main use of concurrent conditions is in the sale of goods and land.

D is correct. The friend's suit on May 1 was a material breach of the obligation and had the effect of discharging the man's obligation to pay the note. Therefore, the man's obligation is no longer enforceable.

A is incorrect. The materiality of the breach is determined at the time that it occurs, not based on subsequent circumstances. This is because the party who first materially breaches his obligation is liable for that breach and loses the right to sue the other party, whose obligation is discharged.

B is incorrect. While the UCC does impose an obligation of good faith on the performance of every contract or duty under its purview, moral obligation is not sufficient to enforce a promise.

C is incorrect. This claim would not have been barred by any statutes of limitations because it is a wholly new claim. The friend's claim against the man was based upon the April 1 agreement, a newly-created obligation.

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4. Does the new count state a claim upon which relief can be granted?

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