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 kept that ensure « embod[ied] a contract different from the new deal to supply roofing materials, » new breach from which triggered brand new statute regarding constraints anew (id. on 610). This is therefore due to the fact defendant during the Bulova Observe « failed to only ensure the position or show of goods, but offered to manage a help » (id. on 612). One to solution was the newest separate and you can collection of hope to fix good defective rooftop-a significant part of the parties’ contract and you can « a separate, independent and extra bonus to acquire » the brand new defendant’s device (id. from the 611). Consequently, the fresh new « agreements contemplating functions . . . have been susceptible to a half dozen-seasons statute . . . powering age occasioned whenever a violation of one’s obligation so you’re able to repair the newest fused rooftop happened » (id.).
DBSP’s treat or americash loans Bridgeport repurchase duty try the newest Trust’s fix for a breach of those representations and you may guarantees, maybe not a vow of your own loans’ coming results
Brand new corrective clause during the Bulova View expressly guaranteed coming show out of brand new rooftop and you can undertook a promise to correct the fresh new rooftop in the event the they don’t fulfill the seller’s be certain that. It [*7] illustrated and you will justified specific information regarding the brand new loans’ characteristics as of , when the MLPA and you may PSA was performed, and you can expressly stated that the individuals representations and you can warranties did not endure the brand new closure day. In place of the separate be sure during the Bulova Observe, DBSP’s dump or repurchase responsibility could not reasonably be considered because the a distinct hope out of coming overall performance. It was dependent on, and even by-product of, DBSP’s representations and you may warranties, and therefore failed to endure the fresh closing and had been breached, whenever, on that day. [FN3]
Indeed, little about package given that get rid of or repurchase responsibility do continue for the life of fund
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