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).
We stored your be certain that “embod[ied] an agreement distinctive from the contract to provide roofing system material,” the fresh violation at which brought about the latest law regarding restrictions anew (id. from the 610). This is thus due to the fact offender into the Bulova View “don’t simply make sure the updates or show of your own products, but accessible to carry out a help” (id. within 612). One to services was the fresh separate and you will type of guarantee to fix a great faulty rooftop-a critical component of brand new parties’ price and you can “an alternate, independent and extra extra to acquire” the brand new defendant’s equipment (id. during the 611). Appropriately, the newest “preparations contemplating services . . . was indeed at the mercy of a half a dozen-seasons law . . . running ages occasioned when a violation of the obligation so you can resolve the fresh new bonded roof took place” (id.).
DBSP’s reduce otherwise repurchase duty are the new Trust’s fix for good breach of those representations and you will guarantees, maybe not a guarantee of your loans’ coming results
This new corrective term in the Bulova Check out explicitly protected coming abilities from this new rooftop and undertook a vow to repair brand new roof if they don’t fulfill the seller’s guarantee. They [*7] portrayed and you may justified certain factual statements about the brand new loans’ characteristics as of , when the MLPA and PSA was conducted, and you can explicitly stated that men and women representations and you can guarantees failed to endure the closing day. In the place of the brand new separate be certain that in the Bulova Check out, DBSP’s cure otherwise repurchase responsibility cannot fairly be considered since a definite pledge away from coming efficiency. It was dependent on, and even by-product of, DBSP’s representations and you may warranties, and that don’t survive brand new closing and had been breached, if at all, on that go out. [FN3]
In reality, absolutely nothing regarding the offer given your eliminate or repurchase obligation carry out last for the life of one’s financing
And it makes sense that DBSP, as https://www.paydayloanalabama.com/carolina/ 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