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 held that ensure “embod[ied] a binding agreement distinct from this new deal to offer roofing material,” the new violation where triggered the brand new law out-of restrictions anew (id. within 610). It was thus because the accused in Bulova Observe “didn’t only guarantee the position otherwise show of your items, however, agreed to carry out a help” (id. at the 612). You to service try the fresh independent and you can distinct hope to correct an excellent defective rooftop-a life threatening part of the newest parties’ offer and “a special, independent and extra incentive to acquire” the defendant’s tool (id. within 611). Correctly, the newest “agreements contemplating services . . . was subject to a six-seasons statute . . . running age occasioned anytime a breach of your responsibility so you can repair the fresh bonded roof taken place” (id.).
DBSP’s lose otherwise repurchase responsibility is actually the latest Trust’s remedy for good infraction of these representations and you can warranties, perhaps not a hope of loans’ future overall performance
The fresh new corrective clause when you look at the Bulova Watch expressly guaranteed future performance of the fresh new rooftop and you will undertook a promise to repair the brand new roof in the event that they don’t fulfill the seller’s verify. They [*7] depicted and justified particular factual statements about the loans’ features since , if the MLPA and you may PSA was basically conducted, and you will expressly stated that people representations and warranties don’t survive the new closing day. Rather than the fresh separate verify in Bulova Observe, DBSP’s beat otherwise repurchase obligations could not relatively be considered because the a definite pledge out-of future performance. It absolutely was dependent on, as well as by-product out of, DBSP’s representations and you can guarantees, and that didn’t survive the fresh new closing and was in fact breached, if, thereon day. [FN3]
In fact, little regarding the package specified your beat otherwise repurchase responsibility perform continue for living 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 payday loan Hobson City 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