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 your be certain that “embod[ied] a contract distinctive from the fresh new deal to offer roofing system content,” the fresh new breach where payday loans Concord caused this new statute of limits anew (id. at 610). This was so because accused within the Bulova View “didn’t simply make sure the position or efficiency of goods, but wanted to perform a service” (id. during the 612). That solution are the new independent and you can type of guarantee to fix a beneficial defective rooftop-a life threatening part of the brand new parties’ contract and you will “an alternate, separate and additional added bonus to get” brand new defendant’s tool (id. on 611). Appropriately, this new “plans considering attributes . . . was susceptible to a six-year law . . . running many years occasioned each time a breach of your obligations so you’re able to resolve this new bonded rooftop occurred” (id.).
DBSP’s reduce otherwise repurchase duty try new Trust’s fix for an excellent breach of these representations and warranties, not a pledge of the loans’ coming show
The fresh new remedial condition for the Bulova See explicitly guaranteed future overall performance regarding this new roof and undertook a guarantee to fix the fresh new roof in the event that they failed to satisfy the seller’s ensure. They [*7] illustrated and you will justified particular facts about the new loans’ properties by , if MLPA and PSA was indeed performed, and you can expressly reported that the individuals representations and you can warranties failed to survive the new closing time. As opposed to the separate guarantee inside the Bulova See, DBSP’s cure or repurchase obligation couldn’t reasonably be considered since the a definite promise off future overall performance. It had been dependent on, as well as by-product out-of, DBSP’s representations and you can warranties, which did not endure the newest closing and you can have been broken, if, on that time. [FN3]
In fact, nothing on offer specified that lose or repurchase duty would last for living of your funds
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
