Posted: May 19th, 2017

Thomas, a French literature professor in California, arranged to exchange positions for one year with Francois, a French literature professor in Paris, beginning September 1. On August 1 they entered into a written lease agreement under which Francois would lease Thomas’ house. The agreement said, “It is of the essence that Thomas’s house be completely painted by September 1.” Thomas then entered into an agreement with Paul the painter to complete the painting of Thomas’s house by August 28.

Thomas, a French literature professor in California, arranged to exchange positions for one year with Francois, a French literature professor in Paris, beginning September 1. On August 1 they entered into a written lease agreement under which Francois would lease Thomas’ house. The agreement said, “It is of the essence that Thomas’s house be completely painted by September 1.” Thomas then entered into an agreement with Paul the painter to complete the painting of Thomas’s house by August 28. The Thomas-Paul agreement contained the following: “Paul is bound hereunder if, and only if, he has been able to obtain Kelly-Moore “Sunset Yellow” paint by August 28.” Paul did not begin to look for the necessary paint until August 25, when he learned that, due to manufacturing shortages, the paint could not be obtained until September 20. Paul told Thomas this on August 26, and suggested amending the agreement to provide for a painting completion date of October 1. Thomas at once advised Francois by telephone of this development, and further advised that it was then impossible to find another painting company that could have the house ready by September 1. Francois there-upon cancelled the lease and immediately made other, more expensive, housing arrangements. Thomas then wrote Paul on September 3 that his services would not be needed or accepted, and that he was expressly reserving all legal rights and remedies against Paul for breach of contract. 1) If Thomas sues Paul for breach of contract, which of the following is most likely to succeed as a defense for Paul? (A) The court would find Paul was bound by an implied covenant to make reasonable effort to obtain the specified paint before August 25. (B) Paul was excused by reason of impossibility. (C) Paul’s notice to Thomas that he anticipated a delay in completion was not a breach of contract. (D) The time term and completion date was not of the essence in the Thomas-Paul contract.