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 held your verify “embod[ied] a contract distinctive from the fresh bargain available roofing content,” the newest infraction from which brought about the latest statute out-of constraints more helpful hints anew (id. at the 610). This is therefore as the accused within the Bulova Watch “did not simply ensure the status or abilities of your products, but agreed to do a support” (id. during the 612). One services is actually the latest independent and you will collection of promise to fix a great bad rooftop-a serious element of the fresh new parties’ bargain and you can “an alternate, separate and extra bonus to buy” the defendant’s device (id. within 611). Appropriately, the brand new “arrangements considering features . . . was basically susceptible to a half a dozen-12 months law . . . running decades occasioned each time a violation of responsibility so you’re able to fix the fresh bonded roof happened” (id.).
DBSP’s beat otherwise repurchase obligation are the fresh Trust’s fix for an excellent infraction ones representations and you may warranties, maybe not a pledge of one’s loans’ coming abilities
The newest remedial clause within the Bulova Check out explicitly guaranteed coming overall performance out of this new roof and you can undertook a promise to repair this new roof when the it did not match the seller’s ensure. It [*7] illustrated and justified particular information about the fresh loans’ features since , when the MLPA and you will PSA were executed, and expressly stated that those individuals representations and warranties don’t survive the fresh closing big date. Rather than the latest independent be certain that into the Bulova View, DBSP’s clean out or repurchase obligations cannot relatively be looked at because a definite guarantee of future overall performance. It was dependent on, and indeed by-product from, DBSP’s representations and you may warranties, which didn’t survive the fresh closing and was indeed breached, whenever, thereon big date. [FN3]
In fact, little from the offer given that the eliminate otherwise repurchase duty do last for living of one’s 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
