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 that verify “embod[ied] a binding agreement distinctive from this new contract available roof materials,” the new infraction from which triggered the fresh statute off limits anew (id. at 610). This is very as the accused for the Bulova Observe “did not only make sure the status otherwise results of one’s items, but agreed to create an assistance” (id. at the 612). One services are the new separate and you may distinctive line of guarantee to fix a good faulty rooftop-a serious element of the fresh new parties’ deal and you may “a different sort of, separate and additional incentive to shop for” this new defendant’s tool (id. within 611). Consequently, the “preparations contemplating features . . . had been at the https://paydayloanalabama.com/bucks/ mercy of a half dozen-season statute . . . powering years occasioned when a breach of the obligations so you’re able to fix the bonded rooftop took place” (id.).
DBSP’s reduce otherwise repurchase duty is new Trust’s treatment for a great breach of these representations and you may warranties, not a vow of loans’ upcoming results
The brand new remedial clause inside the Bulova View explicitly secured coming efficiency away from the new roof and you will undertook a promise to correct the fresh roof if it don’t fulfill the seller’s verify. It [*7] depicted and you may rationalized certain factual statements about brand new loans’ functions by , if MLPA and PSA was conducted, and explicitly stated that those representations and you can guarantees failed to endure the fresh closing time. Rather than the fresh separate guarantee for the Bulova See, DBSP’s reduce or repurchase responsibility couldn’t fairly be considered as a definite vow away from coming show. It actually was dependent on, as well as derivative out of, DBSP’s representations and warranties, hence did not survive the new closing and you can was indeed breached, whenever, thereon go out. [FN3]
In reality, nothing on offer specified that lose otherwise repurchase duty carry out last for the life span of the financing
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