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 pay day loans Chunchula AL ‘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] a binding agreement distinctive from the fresh new offer available roofing system materials,” brand new breach where caused the law of restrictions anew (id. in the 610). This is thus since accused for the Bulova View “don’t simply guarantee the standing otherwise show of one’s items, but accessible to would a service” (id. during the 612). You to solution try the new separate and you will type of hope to fix a good faulty rooftop-a serious element of new parties’ deal and you may “an alternate, separate and additional bonus to order” new defendant’s unit (id. at the 611). Properly, this new “preparations thinking about attributes . . . was at the mercy of a half dozen-seasons law . . . powering many years occasioned each time a violation of your own duty so you can repair the latest fused rooftop taken place” (id.).
DBSP’s remove or repurchase duty is brand new Trust’s remedy for an effective violation of these representations and you can guarantees, maybe not a pledge of loans’ future performance
New remedial clause in Bulova Watch explicitly guaranteed coming show from the new roof and you can undertook a hope to fix the brand new roof if the they didn’t match the seller’s make certain. It [*7] illustrated and you can warranted particular details about the latest loans’ qualities at the time of , in the event that MLPA and you may PSA had been done, and expressly stated that the individuals representations and you will guarantees failed to survive new closure big date. Rather than the newest separate be certain that within the Bulova Check out, DBSP’s lose or repurchase responsibility couldn’t fairly be looked at due to the fact a definite guarantee of upcoming performance. It absolutely was dependent on, and indeed derivative of, DBSP’s representations and you will guarantees, which failed to survive the newest closure and you can was basically broken, if at all, on that date. [FN3]
In fact, little on contract given that the get rid of or repurchase duty do last 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 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