Contracts and Sales Multistate Bar Practice Exam

Which of the following is a constructive condition of performance under common law?

1. Condition of mutual assent

2. Duty to cooperate and give notice for performance

3. Agreement on a fixed price

4. None of the above

The correct answer is: Duty to cooperate and give notice for performance

A constructive condition of performance under common law is an implied obligation that arises in a contract to facilitate the performance of duties among the parties, without the need for a specific agreement on that condition. The duty to cooperate and give notice for performance is a prime example of this concept. It recognizes that parties to a contract have an inherent obligation to assist each other in fulfilling their contractual duties. When a contract involves performance by one party that is contingent upon some action or readiness of the other party, both parties are expected to cooperate in good faith. This is to ensure that the conditions for performance are met, thus enabling the contract to be fulfilled as intended. The requirement of giving notice for performance is also germane, as it involves communication that can affect the timing and execution of contractual duties. On the other hand, mutual assent refers to the agreement between parties on the terms of the contract and is more related to the formation of the contract rather than conditions of performance. Agreement on a fixed price pertains to the terms of the contract but does not relate to the conditions under which performance occurs. Therefore, the correct identification of a constructive condition of performance is aptly represented by the duty to cooperate and give notice for performance.