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 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 be sure “embod[ied] a binding agreement distinctive from the bargain to provide roof information,” the fresh breach of which triggered new law out-of limitations anew (id. on 610). This was very just like the defendant within the Bulova See “did not simply ensure the condition otherwise overall performance of your own items, but offered to carry out a service” (id. at the 612). You to services is new independent and you will type of vow to fix an excellent defective roof-a critical element of the fresh new parties’ offer and you will “a separate, independent and additional extra to shop for” the brand new defendant’s device (id. at the 611). Correctly, the “preparations thinking about qualities . . . have been at the mercy of a half a dozen-seasons statute . . . running age occasioned anytime a violation of your obligations to fix the newest fused roof happened” (id.).
DBSP’s cure or repurchase responsibility try the newest Trust’s fix for good violation of those representations and you can warranties, maybe not a guarantee of the loans’ future overall performance
The fresh remedial term from inside the Bulova Check out explicitly protected future results out-of the new rooftop and you may undertook a promise to correct the fresh new rooftop if it did not satisfy the seller’s be sure. It [*7] portrayed and you will rationalized particular information regarding the loans’ features by , when the MLPA and you will PSA was in fact done, and you will expressly stated that those representations and warranties failed to survive the newest closing day. Unlike new independent be certain that inside the Bulova See, DBSP’s remove or repurchase duty couldn’t fairly be considered because a distinct hope away from future overall performance. It absolutely was determined by, as well as by-product of, DBSP’s representations and you may warranties, and therefore did not endure brand new closing and you will had been broken, if at all, on that time. [FN3]
In fact, nothing throughout the package specified the cure otherwise repurchase obligations would last for the life of the finance
And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which 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 payday loans in Dauphin Island AL online conformity with the representations and warranties. The Trust argues, in effect, that the cure or repurchase 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