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).
We stored the ensure «embod[ied] an agreement unlike this new contract to offer roof material,» the newest breach from which caused the fresh new statute away from limitations anew (id. from the 610). It was so while the defendant within the Bulova Observe «don’t just guarantee the reputation otherwise show of products, however, accessible to create an assistance» (id. on 612). You to definitely solution was the brand new independent and you can type of promise to repair an excellent faulty roof-a critical part of the fresh parties’ contract and you will «another, separate and additional incentive buying» the latest defendant’s device (id. at 611). Consequently, the new «plans contemplating services . . . was at the mercy of a six-12 months statute . . . running age occasioned each time a violation of the obligations to fix new fused roof happened» (id.).
DBSP’s treat otherwise repurchase duty was the Trust’s fix for good infraction of them representations and you will guarantees, perhaps not a promise of your loans’ coming efficiency
The brand new corrective clause within the Bulova Observe expressly protected upcoming results from the fresh rooftop and you can undertook a vow to correct the fresh new roof in the event the it failed to fulfill the seller’s make certain. They [*7] portrayed and rationalized certain information about the brand new loans’ services since , in the event the MLPA and PSA had been conducted, and you may expressly stated that people representations and you will guarantees didn’t survive the latest closure day. Unlike the latest independent be sure from inside the Bulova See, DBSP’s treat or repurchase obligation cannot fairly be viewed since the a distinct guarantee of coming performance. It absolutely was influenced by, and indeed by-product off, DBSP’s representations and you can warranties, hence failed to survive the closure and you can was indeed breached, if, on that day. [FN3]
In reality, little regarding contract given that cure or repurchase duty create last for the life span of fund
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 loans without credit check Citronelle 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
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