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 payday loan Egypt necessary to maintain said Roof’ ” (id. at 608-609).
I stored your make certain „embod[ied] a contract not the same as the deal to supply roofing content,” the latest breach from which caused the law out of limits anew (id. at the 610). It was very while the accused when you look at the Bulova Observe „did not only make sure the position or results of one’s merchandise, but agreed to do a service” (id. from the 612). One to service was the fresh separate and you will line of hope to correct a bad roof-a critical element of the new parties’ deal and you may „another type of, separate and extra extra buying” the new defendant’s unit (id. during the 611). Appropriately, the newest „plans considering features . . . had been at the mercy of a half dozen-season statute . . . running decades occasioned whenever a violation of the obligations so you’re able to repair the fresh new fused rooftop occurred” (id.).
DBSP’s dump or repurchase obligation is the Trust’s remedy for a great infraction ones representations and you can warranties, maybe not a promise of one’s loans’ coming performance
The corrective clause from inside the Bulova See explicitly secured future efficiency off the fresh roof and undertook a guarantee to repair the new rooftop in the event that they didn’t match the seller’s verify. It [*7] represented and you may justified particular facts about the newest loans’ services at the time of , in the event the MLPA and you can PSA was indeed performed, and expressly stated that those individuals representations and you can warranties didn’t endure the brand new closing go out. Unlike the new separate ensure from inside the Bulova Watch, DBSP’s reduce otherwise repurchase duty cannot relatively be regarded as because the a definite promise away from upcoming show. It was influenced by, as well as by-product out of, DBSP’s representations and you may guarantees, and this did not survive the new closing and you can had been broken, if at all, thereon go out. [FN3]
Actually, nothing regarding offer given the reduce otherwise repurchase obligations carry out 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