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 that make certain “embod[ied] a binding agreement not the same as the newest deal to offer roofing system materials,” the brand new violation at which triggered the latest statute out of restrictions anew (id. at the 610). This was thus due to the fact defendant inside the Bulova Check out “don’t only guarantee the position otherwise performance of your items, but agreed to carry out an assistance” (id. at the 612). One to services try the brand new separate and you will collection of vow to correct a great faulty rooftop-a life threatening element of the new parties’ price and “an alternate, independent and additional extra to get” the fresh new defendant’s equipment (id. on 611). Accordingly, the fresh new “arrangements considering characteristics . . . was indeed at the mercy of a six-year law . . . running ages occasioned each time a violation of your duty so you’re able to fix the latest fused roof taken place” (id.).
DBSP’s get rid of or repurchase obligations are the latest Trust’s fix for an excellent violation of them representations and you can warranties, not a pledge of your loans’ coming overall performance
The brand new corrective term from inside the Bulova See expressly guaranteed coming performance from the brand new roof and undertook a hope to correct the rooftop in the event the it didn’t fulfill the seller’s guarantee. It [*7] portrayed and you will rationalized particular information regarding this new loans’ characteristics since , if the MLPA and you may PSA was basically executed, and you will expressly stated that those people representations and guarantees don’t endure the newest closure go out loans Five Points AL. As opposed to this new independent ensure within the Bulova View, DBSP’s treat otherwise repurchase obligations could not reasonably be considered due to the fact a definite vow regarding upcoming results. It absolutely was dependent on, and indeed derivative away from, DBSP’s representations and you may guarantees, and that did not endure the latest closing and you can were broken, whenever, thereon big date. [FN3]
Actually, absolutely nothing regarding the bargain specified that the beat or repurchase obligation would last for the life of funds
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