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 held that guarantee “embod[ied] a contract distinctive from the contract available roofing product,” this new violation where caused brand new statute off restrictions anew (id. from the 610). This was so as the defendant from inside the Bulova Check out “didn’t only make sure the updates otherwise results of one’s services and products, however, agreed to create an assistance” (id. within 612). That service is actually the separate and distinctive line of promise to correct a faulty rooftop-a serious component of the parties’ contract and you will “an alternate, independent and extra added bonus to get” brand new defendant’s equipment (id. within 611). Properly, the new “plans thinking about functions . . . was indeed susceptible to a half dozen-seasons statute . . . powering ages occasioned when a breach of the responsibility to help you fix the fresh new bonded roof taken place” (id.).
DBSP’s treat or repurchase responsibility was the fresh Trust’s remedy for good violation of these representations and you can warranties, maybe not a pledge of loans’ upcoming performance
This new remedial condition during the Bulova Watch explicitly guaranteed upcoming performance of new roof and undertook a hope to repair the new rooftop if the they didn’t satisfy the seller’s ensure. They [*7] depicted and you can rationalized certain details about new loans’ services at the time of , when the MLPA and PSA have been performed, and expressly reported that the individuals representations and guarantees don’t endure the closure big date. Instead of the brand new separate verify when you look at the Bulova Check out, DBSP’s lose or repurchase responsibility could not reasonably be regarded as while the a distinct pledge from future abilities. It actually was dependent on, as well as derivative off, DBSP’s representations and you may guarantees, and therefore did not endure the brand new closure and you will was in fact broken, if, on that time. [FN3]
Actually, little regarding the price specified that treat or repurchase obligations carry out last for loans Emelle AL the life of money
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