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 stored the be certain that “embod[ied] a binding agreement not the same as the new deal to supply roof material,” the newest infraction of which triggered the statute from limitations anew (id. at the 610). It was very given that defendant inside Bulova Check out “did not merely ensure the condition otherwise abilities of one’s merchandise, but offered to perform an assistance” (id. in the 612). You to definitely services are the newest separate and you may type of vow to repair an effective faulty roof-a life threatening component of the fresh new parties’ offer and you may “a separate, separate and additional bonus buying” new defendant’s product (id. in the 611). Appropriately, the fresh “agreements contemplating qualities . . . was at the mercy of a half dozen-seasons law . . . running ages occasioned when a breach of the responsibility so you can resolve the latest bonded roof took place” (id.).
DBSP’s eradicate otherwise repurchase responsibility is actually the newest Trust’s remedy for a violation of these representations and you may guarantees, not loans in Geiger a promise of the loans’ future show
New corrective term from inside the Bulova See expressly protected coming performance off the fresh rooftop and undertook a promise to fix this new rooftop if they don’t fulfill the seller’s make certain. It [*7] portrayed and you can rationalized particular details about the loans’ services as of , if the MLPA and you may PSA were conducted, and you can explicitly reported that people representations and you can warranties did not survive the latest closing day. Instead of the fresh independent make sure into the Bulova Observe, DBSP’s treat otherwise repurchase duty could not relatively be viewed due to the fact a distinct pledge of coming abilities. It absolutely was dependent on, and even by-product out-of, DBSP’s representations and you can guarantees, which didn’t endure this new closure and you will have been broken, whenever, on that date. [FN3]
In reality, little on price given that the beat otherwise repurchase obligations carry out last for the life span 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