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 your make certain “embod[ied] a contract unlike brand new package to supply roofing system materials,” the new infraction of which caused brand new statute regarding limitations anew (id. during the 610). This was so as the accused inside the Bulova Check out “failed to simply ensure the standing otherwise results of one’s goods, but wanted to create a help” (id. during the 612). One to services try the fresh new separate and you will collection of promise to repair an excellent faulty roof-a significant element of the newest parties’ offer and you can “another type of, separate and additional added bonus to get” the newest defendant’s tool (id. within 611). Correctly, brand new “agreements thinking about qualities . . . have been susceptible to a half dozen-12 months law . . . powering ages occasioned anytime a breach of duty to help you resolve the newest fused roof occurred” (id.).
DBSP’s dump or repurchase obligations try the newest Trust’s treatment for a good breach of them representations and you can guarantees, maybe not a pledge of the loans’ upcoming performance
New remedial term when you look at the Bulova Watch explicitly secured coming results out of this new roof and you can undertook a guarantee to correct the latest roof in the event the it don’t satisfy the seller’s ensure. It [*7] represented and warranted certain details about this new loans’ qualities by , when the MLPA and you will PSA was carried out, and you will expressly stated that those individuals representations and guarantees didn’t endure the brand new closure day. In the place of the latest independent be sure into the Bulova Check out, DBSP’s eliminate or repurchase obligations could not reasonably be considered because the a definite promise out-of upcoming abilities. It absolutely was dependent on, and even by-product from, DBSP’s representations and you may warranties, and that don’t survive the closure and you will had been breached, if, thereon day. [FN3]
In reality, nothing on the price specified that the cure otherwise repurchase obligation do continue for the life span of your own loans
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 Hissop loans 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
