41-02.1-44. (2A-403) Retraction of anticipatory repudiation.
633 words·~3 min read·
/nd/title-41/chapter-41-02-1-leases/41-02-1-44·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
1. Until the repudiating party's next performance is due, the repudiating party can retract
the repudiation unless the aggrieved party has canceled the lease contract or
materially changed the aggrieved party's position or otherwise indicated that the
aggrieved party considers the repudiation final.
2. Retraction may be by any method that clearly indicates to the aggrieved party that the
repudiating party intends to perform under the lease contract and includes any
assurance demanded under section 41-02.1-42.
3. Retraction reinstates a repudiating party's rights under a lease contract with due
excuse and allowance to the aggrieved party for any delay occasioned by the
repudiation.
41-02.1-45. (2A-404) Substituted performance. 1. If without fault of the lessee, the lessor, or the supplier, the agreed berthing, loading, or
unloading facilities fail or the agreed type of carrier becomes unavailable or the agreed
manner of delivery otherwise becomes commercially impracticable, but a commercially
reasonable substitute is available, the substitute performance must be tendered and
accepted. 2. If the agreed means or manner of payment fails because of domestic or foreign
governmental regulation:
a. The lessor may withhold or stop delivery or cause the supplier to withhold or stop
delivery unless the lessee provides a means or manner of payment that is
commercially a substantial equivalent.
b. If delivery has already been taken, payment by the means or in the manner
provided by the regulation discharges the lessee's obligation unless the
regulation is discriminatory, oppressive, or predatory.
41-02.1-46. (2A-405) Excused performance. Subject to section 41-02.1-45 on substituted performance, the following rules apply: 1. Delay in delivery or nondelivery in whole or in part by a lessor or a supplier who
complies with subsections 2 and 3 is not a default under the lease contract if
performance as agreed has been made impracticable by the occurrence of a
contingency the nonoccurrence of which was a basic assumption on which the lease
contract was made or by compliance in good faith with any applicable foreign or
domestic governmental regulation or order, regardless of whether the regulation or
order later proves to be invalid. 2. If the causes mentioned in subsection 1 affect only part of the lessor's or the supplier's
capacity to perform, the lessor or supplier shall allocate production and deliveries
among its customers but at its option may include regular customers not then under
contract for sale or lease as well as its own requirements for further manufacture. The
lessor or supplier may so allocate in any manner that is fair and reasonable. 3. The lessor seasonably shall notify the lessee and, in the case of a finance lease, the
supplier seasonably shall notify the lessor and the lessee, if known, that there will be
delay or nondelivery and, if allocation is required under subsection 2, of the estimated
quote thus made available for the lessee.
41-02.1-47. (2A-406) Procedure on excused performance. 1. If the lessee receives notification of a material or indefinite delay or an allocation
justified under section 41-02.1-46, the lessee may by written notification to the lessor
as to any goods involved, and with respect to all of the goods if under an installment
lease contract the value of the whole lease contract is substantially impaired (section
41-02.1-58), either:
a. Terminate the lease contract (subsection 2 of section 41-02.1-53).
b. Except in a finance lease that is not a consumer lease, modify the lease contract
by accepting the available quote in substitution, with due allowance from the rent
payable for the balance of the lease term for the deficiency but without further
right against the lessor. 2. If, after receipt of a notification from the lessor under section 41-02.1-46, the lessee
fails so to modify the lease agreement within a reasonable time not exceeding thirty
days, the lease contract lapses with respect to any deliveries affected.