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 kept the be sure “embod[ied] an agreement unlike the latest offer to supply roofing product,” the violation where brought about the new law off limitations anew (id. from the 610). This is so since offender inside the Bulova Observe “did not only ensure the position otherwise abilities of your merchandise, but agreed to would an assistance” (id. within 612). You to services is actually the new separate and you may collection of vow to fix an excellent faulty roof-a significant component of the newest parties’ bargain and you may “a special, separate and additional bonus to acquire” this new defendant’s tool (id. from the 611). Properly, the brand new “agreements considering services . . . have been subject to a half a dozen-seasons statute . . . running many years occasioned whenever a violation of your duty in order to fix the latest fused rooftop occurred” (id.).
DBSP’s eradicate otherwise repurchase duty is actually new Trust’s remedy for a breach of these representations and guarantees, maybe not a promise of the loans’ coming efficiency
New remedial clause for the Bulova View explicitly secured coming overall performance out of new roof and you will undertook a hope to fix this new roof when the they didn’t match the seller’s make sure. They [*7] illustrated and rationalized certain details about the fresh new loans’ characteristics at the time of , when the MLPA and you will PSA was performed, and you may explicitly stated that people representations and you may guarantees failed to endure this new closure time. Unlike the newest separate be sure into the Bulova View, DBSP’s dump otherwise repurchase duty cannot reasonably be looked at as a definite promise from future show. It had been dependent on, and even derivative off, DBSP’s representations and you will warranties, and that failed to survive the latest closure and you can were breached, if at all, thereon time. https://paydayloanalabama.com/fairview/ [FN3]
Actually, nothing on deal given the get rid of otherwise repurchase obligation do last for the life of the 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
