Also known as:future performances · executory performance
Written by attorneys · grounded in primary & secondary sources — see below
A contractual obligation to perform duties that become due at a later time. In sales contracts governed by the UCC, acceptance of an improper delivery does not impair the right to demand adequate assurance that this obligation will be met when reasonable grounds for insecurity exist.
Sources & Authorities
How it applies
Common Examples
6
Seller Accepts Defective Parts
Flagship Logistics accepted a shipment of engine parts from Freeman Engineering even though some arrived with incomplete certificates. After discovering warehouse damage at the supplier, Flagship sent a written demand for assurance that the remaining parts would meet specifications. Freeman responded only with an informal email claiming all issues were fixed. Because the prior acceptance does not bar the demand, Flagship may suspend further performance if the assurance proves inadequate under commercial standards.
Tour Guide Renounces Contract
Flora Ford hired Farid Farahani to lead a European tour scheduled for June. In April, Farahani wrote that he would not perform because he planned to relocate. Ford immediately booked alternative guides and sued for damages. The renunciation allowed Ford to treat the contract as ended without waiting for the June performance date.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Dictionaries
Hochster v. De La Tour2 EB. & B. 678, 118 Eng.Rep. 922
Buyer Receives Computer With Warranty
Fatima Flores ordered a computer from Falcon Dynamics. The box contained a document promising lifetime service and software updates. When a defect appeared months later, Flores invoked the service promise. The document's commitments to future assistance formed part of the enforceable agreement.
Hill v. Gateway 2000, Inc.105 F.3d 1147 (7th Cir.1997)
Campaign Leaflet Without Name
Francesca Fiore distributed anonymous leaflets opposing a ballot measure. State law required disclosure of the author's identity. Fiore argued the rule chilled protected expression about future electoral choices. The Court examined whether forced identification unduly burdened the right to speak on upcoming performance of public duties.
McIntyre v. Ohio Elections Commission514 U.S. 334 (1995)
Broadcaster Licenses Music Catalog
Fidelity Trust negotiated with Broadcast Music for a blanket license covering future airplay of thousands of songs. The license required ongoing royalty payments tied to usage. The arrangement secured assurance that performance rights would remain available throughout the license term.
Broadcast Music, Inc. v. Columbia Broadcasting System, Inc.441 U.S. 1, 8–9, 99 S.Ct. 1551, 1556–57 (1979)
Columnist Sued For Defamation
Felipe Figueroa wrote an article criticizing a public figure's business record. The subject sued for libel. The Court considered whether the statements concerned past conduct or predictions of future performance in office. Actual malice analysis turned on the distinction between verifiable facts and forward-looking opinions.
Gertz v. Robert Welch, Inc.418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)
Common questions
Frequently Asked
3
Does accepting a prior defective delivery waive the right to demand assurance of future performance?+
No. Under UCC § 2-609(3), acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance. Each demand is assessed independently on current facts.
Supporting sources
When may a party demand adequate assurance of future performance under the UCC?+
A party may demand assurance in writing when reasonable grounds for insecurity arise with respect to the other's performance. Between merchants, reasonableness and adequacy are judged by commercial standards.
Supporting sources
What happens if adequate assurance is not provided after a justified demand?+
Failure to provide adequate assurance within a reasonable time not exceeding thirty days constitutes repudiation of the contract.
Supporting sources
105 F.3d 1147 (7th Cir. 1997)Contracts
…customers use their products than on developing and manufacturing them. The document in Gateway's box includes promises of future performance that some consumers value highly; these promises bind Gateway just as the arbitration clause binds the Hills. Next the Hills insist that ProCD is irrelevant because Zeidenberg was a…