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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Monday, May 3, 2010

2 - Contracts - Performance (Intro to Conditions)

2 - Contracts - Performance (Intro to Conditions)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Last time for contracts, we looked at a basic outline for the topic of contract performance. Now we look at the first topic in performance, “Conditions.”

Let’s define conditions: In Calamari and Perillo on Contracts, 6th Ed. at p. 36, condition is defined as: A condition is an act or event that qualifies a promised performance. It is an act or event other that a (mere) lapse of time, that, unless it is excused, must occur before a duty to perform a contractual promise arises (condition precedent), or that discharges a duty of performance that has already arisen (condition subsequent).

But, to fully understand conditions, we must also understand the meaning of “promise.” A promise is a manifestation of intent to act or refrain from acting in a certain manner.

It is important to distinguish between a promise and a condition because, among other things, if a promise that is included in a contract is not fulfilled, then we say that the
promisor has breached. The effect of a condition that does not occur is different. A duty of performance does not arise for one of the parties.

Let’s say that Oscar enters into a written contract with Barry where Barry will build him a house for $300,000. There is a clause in the contract that says the house will be completed by December 1. If the house is not completed by December 2, does Oscar have a duty to pay?

If the contractual completion date provision is an express condition precedent to Oscar’s obligation to pay, then Oscar would be excused from having to pay. On the other hand, however, if the completion date provision is a promise, then Oscar has a duty to pay, and Oscar has to sue to recover damages for any harm he may have suffered due to the delay.

Suppose Oscar agrees with Barry that Oscar will pay for the house unless Barry is more than 6 months late in its completion. If that happens, Barry agrees to give the house to Oscar for free. What kind of conditions are these?

The answer is: Conditions subsequent. Conditions can also have the effect of taking away a party's duty of performance. Upon the happening of the specified event, an existing duty of performance terminates.

More on conditions next time in Contracts.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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