when the government breaches a contract in our appeal we race to errors on the part of the district court the first is did the district court error in finding of the factual matter the park w and that's the crux of the district court case and we just have a paper trail that's all we have and so the question is what is stated in that letter and we also have regulations that come into play but on the letter itself the critical language of the letter that was written by the prior general partner of this limited partnership it is a august three one thousand nine hundred two letter and the language the critical language says this letter along with the accompanying documents represents our formal request to so there were some regulations that were implemented after the olympics actually came into play in one nine hundred eighty eight and those are what we practitioners know at the time as regulation one hundred sixty five eight and one hundred sixty five e provided all sorts of things by the way silence on the part of the government there's not a fat check that actually tendered you're talking about let me give you an example it would be like me saying i'm going to come down to prepay this loan on monday and i don't show up and i don't tend to repayment on monday has a government breach been established on monday because i said i was going to come in on monday and prepare the loan i think that's what the district court held but i don't think that's the appropriate rule of law i think there has to be some affirmative action on the part of the sell they have to accept that we actually try prepay and that's that's the whole issue here there's it's a future statement and there's nothing in response on the part of the government and if you uphold the court claim that's going to create a  because you're going to have a situation like i just mentioned where someone says i'm going to come down i have the government contract i have the right to prepay at any time i'm going to come down on monday and prepared me don't show up according to did it if this is the established rule of law then  firm date as to when the claim accrued i mean we don't know what the government is going to do i mean and this is a future statement it's not that we came into the government and handed them a check and the government  that i just disagree with the notion that if you make a future statement that you're going to prepay in the future date that that's the government's and date that they have to perform i mean there has to be the problem of that aryans that seems to have been rejected  it's just a continued repudiation because the government's announced that it's not going to perform but they have done no affirmative action and that's the read of the cases that i see is that there have to be some affirmative action on the part of the government to longer interesting yes and you know the other argument i have is that the regulations required to do some it put a date in there so it's not this is not a statement coming out of the park which is a statement is demanded by the government and now they're trying to hang it on it but it's it's it's not a demand it's a request and it just goes back to that analogy that i gave to you if i come if i said going to come into the bank on monday and pay this off does that constitute a breach and if you hope so it's going to create a situation where the government's damages are going to breach or wait until performance becomes actually do and if it's not forthcoming then at that point he can sue then within six years after that but the  it wasn't the case in the other but in the other they said you know please accept these incentives state programs that that's right and what this court said was that wasn't acceptance the bar was saying i want to pre pay we would have preferred if the courts would have held it a little is not a repudiation of anything and that all the liberal restrictions are consistent with the contractual rights that we have to live with the judicial interpretations and decisions that that we have and at the words of the court were at one point i have this quoted in our brief a page fifteen where the court says at five fifty fifth third eleven forty three  argument is that at that point the failure of the government to accept is a breach right but they're saying that there has to be some affirmative act even after the performance passed that that's what park this case with a contractual clause if that issue is one that is designed to allow the buyer to end the contract they wanted in the time track prepay their loan so that they are no longer subject offer too and the contract and then would have made a world of difference but they didn't do that they don't even claim they did that but isn't mutual performance under the contract meaningful there from that point on well no because the under their loan contract which they were trying to get out of they were obligated to continue performing to continue to keep the rents within the program restrictions and so on as long as the as the loans remain contract therefore i'm no longer participating in the program because the obligation to participate in that it sort of turns around because the obligation to participate in the program exists as long as they haven't prepay and they're asserting a contractual right to prepay and that's the only thing they say the government breached that the government shouldn't charlie the government reached have an obligation to continue to perform right they and they had an obligation to continue to perform the requirements of the loan agreement because it makes no sense to me that the government uses a government breach they don't have an obligation to continue to perform i mean the weather's nice significance to the continued performance one that i'm doesn't reach in some ways is a different question but that they don't have to continue to perform and the government has br stay in the program if they don't have to stay in the program because contracts been breached that they haven't been harmed because that's exactly what they want to do is to end the contract and if they do that and there's no  harm the the claim the entire breach of contract claim here is not that the contract as a whole was breached but rather that one particular provision of the contract was breached and that was the provision that would let and the only reason that we want to prepay is because that would get them to the requirements of the loan agreement and their claim is that because we didn't let them free pay they were stuck in the program having to  performance and if it's if it's not complied with just performance is not forthcoming when due that's the breach the can start the clock running again by repeated requests for performance  malayan it was the same issue was in the past repeated requests they were focusing their on the possibility of a future repeated request repetition of your request and the court said no you made your request it was not complied with it was a breach statue imitations of time cards why can't they make a future request that just goes to damages they can't go back and get the damages for the government's failure to comply you know because they've lost their right to bring th reason is that the current through the contractual obligation in question was not one the call for some continued performance that there will be a different sort of thing where none performance over a period of  time doesn't necessarily mean that they're that that the rest of the performance called for won't occur but here performance would have been acceptance of the pre prepayment had that and that  happen once was once you accept repayment then the loan is over and everybody goes away and everybody's happy but the breach here was that when the obligation to accept repayment three so they could have sued when a little was enacted or they could have waited for performance to come due and then sue within six years is that when you say performance to become do they have the government to accept repayment on mean normally the way would have known the government rate well because because the government in this if one were to say that for the government to perform there has to be an actual tender of a check and then the government cashing  check and releasing the liens then that would be one thing but in terms of if if if a demand had had to be a literal tender but again it's courts and family and that formality is not required where there has to be is this an offer to repay nasa the acceptance now once the government communicates some sort of acceptance which would essentially be to tell the borrower yes you can prepay send us a check whatever then they reason it was construed as a rejection is that it wasn't an acceptance one of the differences and i mean that made i think more of a difference in tamar lane because entailing the request didn't have a date certain so if the government a done nothing it would have been hard to pinpoint exactly at what point there is a non acceptance so the focus that was on the government did in fact respond in the way it did that was not acceptance here because the request had a date certain of february the government would never have breached nevers on and i think if there was no date certain then we have to struggle with having a pinpoint if and when there has been an acceptance if the government had just been passed and we don't have y i believe that you're correct that i think that the family court was looking to see if that particular request met the requirements of a tender and i do believe that they found that it was a tender now i'm i'm saying take a good hard look when i look at the tamilian case i couldn't see if the court had addressed the regulations because these are regulations that came about as part of the olympics that you know i know that you have it appears that the court has the particular regulations that were in play in ninety two i've given you the sixty five you regulations it was my understanding they were the same but if you wanted to do it it just gets back to the original loan contract and the court kept asking questions today about when with the government for her performance do the government's performance to accept repayment was always it was always obligated to accept repayment when there was a tender because that's what the loan contract provide that you had an unfettered right  my client trying to get home on regulations that required them if they were going to do this alternative proposal which was the one hundred sixty five b process you have to put a date in there that's more than one hundred eighty days after application in the government says in th same regulations that it's really a meeting with statement if you can prepay anyways without their permission and so they're trying to hang it on a statement that they're requiring as part of their regulations and i just think that the better rule of law here would be some affirmative act on the part of the government that constitutes a breach because then you have a hard and fast rule is to when the claim accrues the government knows when it might be obligated for damages and everybody's on notice as to when you need to bring the claim here where you agree with judge more though that if in fact you're correct that that you can't recapture damages for the period from nine hundred ninety three four years i'm sorry no i we're not we're not trying to make a claim for damages we're trying to make a claim for damages from two thousand and three when the government actually responded to the present request that was submitted in may of two thousand and three the governor responded in july of two thousand and three and that's when we find