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 https://paydayloanalabama.com/hillsboro/ 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 held that be sure “embod[ied] a binding agreement distinctive from brand new bargain to offer roofing product,” brand new infraction where caused the fresh new law regarding constraints anew (id. within 610). This was so because defendant from inside the Bulova Check out “failed to simply guarantee the position or performance of one’s items, but wanted to create an assistance” (id. in the 612). You to services is the newest independent and you will type of hope to repair a beneficial defective roof-a critical part of new parties’ contract and you can “a different sort of, independent and additional bonus purchasing” the fresh new defendant’s unit (id. on 611). Consequently, this new “preparations contemplating characteristics . . . were subject to a half a dozen-season statute . . . powering age occasioned each time a breach of your obligation to fix this new bonded rooftop occurred” (id.).
DBSP’s reduce otherwise repurchase obligation are the newest Trust’s remedy for a good violation of these representations and guarantees, not a pledge of the loans’ coming overall performance
The brand new remedial term for the Bulova Watch explicitly secured upcoming efficiency away from the new roof and undertook a pledge to correct the newest roof in the event that they didn’t satisfy the seller’s be certain that. It [*7] represented and you can warranted specific information regarding the fresh loans’ attributes by , when the MLPA and PSA was in fact executed, and you can explicitly stated that those individuals representations and warranties failed to survive the closure date. Instead of the fresh new independent ensure in Bulova See, DBSP’s treat otherwise repurchase responsibility could not fairly be regarded as since a distinct vow out-of future abilities. It was determined by, and indeed by-product out of, DBSP’s representations and warranties, hence failed to survive new closing and you can were breached, whenever, on that time. [FN3]
Actually, nothing about offer given that the treat or repurchase duty create last for living of your 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
