Although parties may contractually agree to undertake a separate obligation, the breach of which does not arise until some future date, the repurchase obligation undertaken by DBSP does not fit this description. To support its contrary position, the Trust relies on our decision in Bulova Watch Co. v <**25>Celotex Corp. (46 NY2d 606 ), where we considered whether the separate repair clause in a contract for the sale of a roof constituted a future promise of performance, the breach of which created a cause of action. The separate clause the seller included in that contract was a “20-Year Guaranty Bond,” which “expressly guaranteed that [the seller] would ‘at its own expense make any repairs . . . that may become necessary to maintain said Roof’ ” (id. at 608-609).
I stored that verify “embod[ied] a contract distinctive from the brand new deal available roof content,” the newest infraction from which brought about the fresh new statute of limits anew (id. from the 610). It was thus because the accused in Bulova View “failed to only guarantee the standing or results of your own services and products, but offered to create an assistance” (id. in the 612). You to solution was the newest separate and you will type of pledge to correct an effective defective roof-a life threatening element of the new parties’ bargain and you will “another type of, separate and additional added bonus buying” the fresh defendant’s equipment (id. at the 611). Correctly, the newest “plans considering features . . . was basically subject to a six-year law . . . powering ages occasioned anytime a breach of your own duty in order to repair brand new bonded rooftop occurred” (id.).
DBSP’s dump otherwise repurchase obligation try this new Trust’s treatment for a great breach of these representations and you may guarantees, not a pledge of your loans’ coming efficiency
Brand new corrective clause in the Bulova Check out expressly guaranteed future abilities out-of the rooftop and undertook a hope to repair brand new roof when the they don’t satisfy the seller’s make certain. They [*7] portrayed and you will warranted particular facts about the new loans’ services at the time of , if MLPA and you will PSA was performed, and expressly reported that americash loans Hobson the individuals representations and you may warranties don’t endure this new closing date. In lieu of the independent be certain that inside Bulova View, DBSP’s cure or repurchase responsibility could not relatively be viewed as a distinct vow off future overall performance. It had been dependent on, and even by-product regarding, DBSP’s representations and you may guarantees, and therefore don’t endure new closure and were breached, if at all, thereon go out. [FN3]
In reality, absolutely nothing about deal specified the eliminate or repurchase obligation do last for the life span of your own financing
And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which <**25>might default 10 or 20 years after issuance for reasons entirely unrelated to the sponsor’s representations and warranties. The sponsor merely warrants certain characteristics of the loans, and promises that if those warranties and representations are materially false, it will cure or repurchase the non-conforming loans within the same statutory period in which remedies for breach of contract (i.e., rescission and expectation damages) could have been sought. [FN4]
If the cure or repurchase obligation did not exist, the Trust’s only recourse would have been to bring an action against DBSP for breach of the representations and warranties. That action could only have been brought within six years of the date of contract execution. The cure or repurchase obligation is an alternative remedy, or recourse, for the Trust, but the underlying act the Trust complains of is the same: the quality of the loans and their conformity with the representations and warranties. The Trust argues, in effect, that the cure or repurchase <**25>obligation transformed a standard breach of contract remedy, i.e. damages, into one that lasted for the life of the investment-decades past the statutory period. But nothing in the parties’ agreement evidences such an intent. Historically, we have been
