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46. Which of the following arguments best supports the architect's claim?
The architect has sued the developer for breach of contract.
An architect agreed with a developer to design a large residential development. Because the architect had a history of substance abuse problems, the parties agreed that the developer's duty to accept and pay for the plans was conditioned on the architect's abstaining from drinking alcohol during the six months it would take to do the work. After two months, the architect began having several alcoholic drinks each day. The developer became aware of the architect's drinking before the architect showed the developer the preliminary plans. When the developer saw the preliminary plans, the developer told the architect that the concept was impressive and that he looked forward to seeing the final plans. The architect continued to have several alcoholic drinks each day and completed the plans within the specified contract period. However, the developer declined to review, accept, or pay for the final plans and stated that it was because of the architect's continued use of alcohol.
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A is incorrect. The architect's alcohol use is likely a material breach of the contract had the developer not waived the provision in the contract.
C is incorrect. Although penalty clauses may be unenforceable, they typically have a specified penalty.
D is incorrect. Although the no-alcohol term is a promise and not a condition, this still does not excuse the architect from his promise to refrain from drinking. Conversely, the developer's waiver does excuse the architect from his promise.