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 stored your be certain that “embod[ied] a contract unlike this new offer to offer roofing system information,” the newest breach of which caused the fresh statute out of restrictions anew (id. during the 610). This was so as the defendant when you look at the Bulova View “did not only make sure the updates loan places Five Points or results of one’s items, but offered to create a help” (id. at the 612). That service is new separate and you can distinctive line of hope to repair a great bad roof-a life threatening element of the brand new parties’ price and you may “a different sort of, independent and extra extra to get” new defendant’s product (id. from the 611). Consequently, the “arrangements considering attributes . . . had been at the mercy of a half dozen-year statute . . . powering years occasioned when a breach of one’s duty to fix this new fused rooftop occurred” (id.).
DBSP’s dump or repurchase obligations is actually this new Trust’s remedy for good violation ones representations and you will warranties, perhaps not a guarantee of the loans’ future abilities
New corrective condition in Bulova See explicitly protected coming overall performance away from brand new rooftop and you will undertook a hope to fix brand new rooftop in the event that it didn’t fulfill the seller’s be sure. It [*7] illustrated and you will rationalized particular facts about the loans’ qualities at the time of , in the event that MLPA and you may PSA have been carried out, and you will expressly stated that the individuals representations and you can warranties didn’t endure the fresh closure day. In the place of the newest independent be sure during the Bulova Check out, DBSP’s lose otherwise repurchase responsibility could not reasonably be viewed because a distinct promise out-of coming results. It absolutely was influenced by, and even by-product out-of, DBSP’s representations and you may guarantees, and this did not survive new closing and you will had been broken, whenever, thereon day. [FN3]
Indeed, absolutely nothing regarding the contract given that the lose otherwise repurchase obligation perform last for the life span of your 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
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