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 your be certain that « embod[ied] a contract distinctive from the fresh bargain available roofing material, » the fresh new violation from which brought about the brand new statute from limitations anew (id. from the 610). This was therefore due to the fact accused inside Bulova Watch « failed to just ensure the reputation or abilities of one’s products, but provided to carry out a service » (id. at 612). You to services try new separate and you can distinct guarantee to fix an effective faulty rooftop-a serious element of the brand new parties’ package and you may « a special, separate and additional bonus to invest in » the brand new defendant’s product (id. from the 611). Consequently, the fresh « arrangements thinking about features . . . had been susceptible to a six-season statute . . . running decades occasioned anytime a breach of your obligations in order to repair the fresh bonded rooftop occurred » (id.).
DBSP’s get rid of or repurchase obligation is actually brand new Trust’s remedy for a infraction of these representations and you will guarantees, perhaps not a hope of loans’ future overall performance
The new remedial condition into the Bulova View expressly secured coming show of the latest rooftop and you may undertook a promise to correct the rooftop in the event that it don’t fulfill the seller’s guarantee. It [*7] depicted and justified specific information regarding brand new loans’ functions since , in the event the MLPA and you may PSA were performed, and expressly reported that men and women representations and you may guarantees failed to survive the fresh closing date. In lieu of the brand new separate guarantee inside the Bulova View, DBSP’s treat or repurchase obligations couldn’t fairly be regarded as given that a distinct hope regarding coming abilities. It absolutely was determined by, as well as derivative off, DBSP’s representations and you can guarantees, and therefore don’t endure the brand new closing and you will was in fact broken, whenever, on that big date. [FN3]
In fact, nothing about offer given that the eradicate or repurchase duty manage continue for living of the finance
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 payday loans Cullomburg 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