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 kept that guarantee „embod[ied] a contract different from the deal to supply roof materials,” the brand new violation of which caused the latest law from limits anew (id. loans Fulton during the 610). This is very just like the offender from inside the Bulova Check out „don’t merely ensure the position otherwise overall performance of your services and products, however, accessible to do a support” (id. within 612). You to solution is actually new separate and you can distinct hope to repair a good bad roof-a significant element of the newest parties’ bargain and you may „an alternative, separate and extra incentive to buy” the latest defendant’s product (id. from the 611). Accordingly, the new „agreements thinking about features . . . had been susceptible to a six-12 months law . . . running decades occasioned each time a breach of duty to help you fix the newest fused roof took place” (id.).
DBSP’s eradicate otherwise repurchase obligation was this new Trust’s fix for a good violation of those representations and you will warranties, not a guarantee of loans’ future show
The latest remedial clause within the Bulova See expressly guaranteed coming results out of the latest roof and undertook a pledge to fix the newest roof when the they didn’t fulfill the seller’s ensure. It [*7] illustrated and you will justified certain information about the new loans’ attributes at the time of , in the event that MLPA and you may PSA have been done, and you will expressly stated that people representations and you can warranties don’t survive the latest closing go out. Instead of the new independent make sure during the Bulova Watch, DBSP’s lose otherwise repurchase duty couldn’t fairly be looked at as a definite hope from coming show. It had been determined by, and indeed derivative out of, DBSP’s representations and warranties, which don’t survive this new closing and was indeed breached, whenever, thereon big date. [FN3]
Actually, little in the package given that the get rid of or repurchase obligations would continue for the life of your 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 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
