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 held that guarantee «embod[ied] a contract different from the new deal to offer roofing system product,» the new breach where caused brand new law out of restrictions anew (id. on 610). This is so due to the fact offender for the Bulova Observe «don’t simply ensure the standing otherwise performance of your own goods, but agreed to would a service» (id. on 612). You to definitely service was the separate and you can line of hope to correct good bad rooftop-a life threatening component of new parties’ offer and you will «a new, separate and additional bonus to shop for» the fresh defendant’s device (id. during the 611). Properly, the latest «plans considering properties . . . was indeed at the mercy of a half a dozen-12 months law . . . running age occasioned whenever a violation of your own duty so you’re able to fix the new bonded roof taken place» (id.).

DBSP’s clean out or repurchase responsibility is the brand new Trust’s remedy for an effective breach of them representations and guarantees, perhaps not a vow of your own loans’ coming show

The remedial clause within the Bulova Check out explicitly protected future efficiency away from brand new roof and you can undertook a promise to fix brand new roof if the they did not fulfill the seller’s guarantee. They [*7] represented and you will warranted particular facts about the brand new loans’ properties as of , if the MLPA and you may PSA was indeed carried https://paydayloanalabama.com/enterprise/ out, and you will expressly stated that those people representations and you will warranties failed to endure new closure date. In place of brand new separate verify for the Bulova Check out, DBSP’s get rid of or repurchase obligation couldn’t relatively be looked at given that a distinct promise out of upcoming overall performance. It had been influenced by, and indeed derivative out-of, DBSP’s representations and you can guarantees, which don’t survive the newest closing and had been breached, if at all, thereon go out. [FN3]

Actually, nothing from the offer specified that the eradicate or repurchase responsibility manage continue for living of one’s 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 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