Overview of Construction
- After Interp. Give Legal Effect of Provisions
- As Cond.
- As Duty
- Modernly, both duty & cond. in prom'ry duty
- Activation of D's Duty
- P doesn't need 2 do anything 2 activate duty
- P's cond. fulfilled / excused then activated D's duty
- Def. of Cond.
- Any uncert. fact / event other than passing X in perf. phase
that activates D's duty
- No need 2 B aff. axn as long as uncert. from K'ing parties
- Factors 2 Det. Cond.
- Wording of the Provision
- Gen'ly cond. if expressly state: provided, cond'al / subj.
- Gen'ly duty if expressly state: agree, prom., shall, will,
/ undertake 2 do something
- No cond. if state: when, such X's, 5 days after, etc. b/c
rsbl X not cond.
- Purpose of the Provision
- Look @ extrinsic evid. 4 purpose 2 see if cond. / duty
- Issue of interp. on admissible extrinsic evid. of parties'
- Materiality of the Provision
- Parties can make any inconseq'al event as cond. but gen'ly
rational barg'ing parties wouldn't do that
- Source of the Lang.
- Look @ who wrote the lang.
- Gen'ly own undertaking, then duty
- Gen'ly what U do in exch. 4 undertaking, then cond.
- Presumption of Duty If Ambiguous
- Gen'ly construe statements as duty not cond. b/c if duty then
rt. 2 enforce
- Policy 4 preference of bilateral K 2 give both sides enforceable
- Classification of Cond's
- Operative Effect
- Cond. Precedent
- Faciendo then dando / work 1st then $
- Cond'al duty so pay after subst'ly fulfill / render perf.
before triggering any duty 2 pay
- Burden of convincing that cond. occurred falls on 1 making
the claim / P
- If ambiguous & P can't prove, D wins
- Cond. Concurr.
- Two sides perf. simultaneously instead of perf. 1st like cond.
- Perf. here by tender which is offer w/present ability 2 fulfill
all the cond's
- Once tender, trigger duty of imm. perf. on the other party
- Policy of protecting from extending credit 2 somebody untrustworthy
- Cond. Subseq.
- Even if all cond. precedent / concurr. fulfilled, passage
of cond. subseq. would exting. duty
- Gen'ly in auto policy where priv. statutory S/L by ins. co.
limits 2 cond. of bringing suit w/in 1 yr. / no C/A
- D has burden of proving this cond. b/c P proves all other
- If ambiguous & D can't prove, P wins
- Manner of Creation
- Created by parties' axns as long as intended
- Broad meaning
- Old C/L assumed that if no express cond., then 2 indep. duties
& not imply cond's so have 2 unilateral K's where both parties
can maintain axns
- Constructive Cond. of Exch.
- Modernly, w/o express cond., law will construct cond. in int.
of justice & giving both sides what they want
- Assume bilateral K & express duty is also constructive
- Dif. K's
- Alternating Prom'ry Cond's K's
- Gen'ly work then $ so express duty which becomes constructive
cond. 4 next. perf. , etc.
- 1st & last commitment dif.
- First is express uncond'al duty but others cond'al
- Last is only duty w/o being cond.
- Aleatory K's
- Charact'ed by assuming risk not barg & uncert. event doesn't
rep. barg. on the other side
- No constructive cond. of exch. so indep. duties but can still
have express cond's
Possibilities of Cond's
- P not entitled 2 C/A b/c only duty of imm. perf. is capable
- Can B just 1 failed cond. 4 D 2 win
- Strictly Fulfill
- Activates duty 2 duty of imm. perf. if fulfill ALL cond's
- Can go forward 2 det. if duty breached so possibility of recov.
- Two Kinds of Cond's 4 Failure / Fulfill of Cond's
- Subj. meaning is person asking 4 the service
- Obj. meaning is satisfaction 2 3rd party / typical member
- Constructional Tendencies When Ambiguous Lang.
- Gen'ly obj. stand. 4 prom'or's satisfaction & subj. stand.
4 3rd party's satisfaction
- Artistic subj. matter: subj. stand. b/c obj. stand. less feasible
- Commercial. subj. matter: obj. stand. b/c feasible & motive
2 lie otherwise
- Artistic subj. matter & 3rd party: subj. stand. b/c trust
3rd party more
- Commercial subj. matter & 3rd party: varies by state b/c
3rd party 4 subj. stand. but commercial 4 obj. stand.
- If express & clear lang, then above categories not matter
- Notice / Demand (in material)
- Not fulfilled but as policy excused
- Activates duty but might not get same recov. as strict fulfillment
- Split of auth. on excusing evid. cond. when fulfill subst.
cond. / subst'ly perf'ed
- Doc's Based on P's Cond.
- Subst'l Perf.
- Basic policy that both sides get what they want & avoid
- Imp. in construction K
- If get almost everything, then excused
- Type of Cond's This Applies 4
- Split of auth.
- Not recog. @ all
- Recog. only constructive cond. in construction K
- Recog. constructive cond. in all K's
- Gen'ly, if recog, will only do so in constructive cond. of
exch., not express cond.
- Elements Triggering Subst'l Perf.
- Obj., trivial, remaining work, purpose in fn, & econ.
waste 2 finish
- Subj. S/M 4 Innocent
- If intentionally deviate 4 better prod., o.k.
- If intentionally deviate b/c no choice, o.k.
- If intentionally deviate b/c want dif. look, bad faith
- Stand.'s of Subst'l Perf.
- Vague, broad purpose & essential fn.
- Fixed, structural defect
- Middle, 10% failure failure then no subst'l perf.
- If want precedence, then specif. stand. but if justice 4 indiv.
case, then vague stand.
- Effect of Application
- Cost of compl'ion / lwred value deducted from award
- Prevention of Forfeiture (Min. Jxn)
- Close 2 subst'l perf.
- X'ing is essential 4 mortgage & option K's
- Rest. recog's & req. severe forefeiture, immaterial forefeiture,
& good faith not intentional
- Doc's Based on D's Conduct
- Three Types of Waivers
- Before P can fulfill cond., D led P 2 believe D wasn't going
2 insist on fulfillment
- Rsbl expectation in P's minds when had ability 2 fulfill cond.
- P relied by foregoing the cond.
- Implicit prom.'ry estoppel (PE)
- Revocable if X'ly change mind
- D's conduct after cond's failure
- After P's failure of maj. breach, D @ election 2 term. / treat
as minor & if D cont's 2 perf. so elected 2 waive OR
D receives perf. from the other side after failure
- Vol. receipt of benefit
- Wasn't entitled 2 benefit
- D's conduct after cond's failure
- Slipperiest so quest'able if should recog. this when proof
of intent gen'ly not good any X else +
- Quest. on proper application of doc.
- Must prove intentional relinq. of known rt. by subj. intent
- Split of auth's
- Not recog.
- Recog. in inconseq. stuff
- Recog. across the board
- Prevention / Hindrance by D
- Before P's failure of cond.
- If D's conduct is wrongful interference, will excuse if causes
- Cond. must B intentional / neg. +
- P not foresee D's conduct & didn't assume risk of D's
- Evolution of Doc.
- Active conduct abs'ly prevent
- Passive non-coop. subst'ly hinder cond's fulfillment
- Wrongful cond. must B but 4 cause
- D's Statement of Unjustifiable Rsn 4 Refusing Perf.
- Slip of the tongue fatal if speak up by D
- If D's rsn 4 refusing 2 perf. isn't what he stated, can't
bring it up again b/c P relied on rsn stated
- Step beyond intentional waiver
- Maj. req. D had subj. intent 2 waive 4 fatal slip of the tongue
- UCC §2-605
- Sub 1)a: Defect ascertainable by rsbl inspection & per.
2 cure if stated seasonably by seller so estoppel excuse
- Sub 1)b: Req'ed btwn merchants after rejection is req. in
writing 4 final statemetn of all defects which buyer proposes
2 rely (4 systemic int. so codify slip of the tongue)
- Prospective Non Perf. (also doc. based on event
- When P in perf. stage trying 2 dec. about fulfilling cond,
already clear that duty wouldn't B perf'ed & sees no exch.
even if fulfill cond.
- Cond. precedent
- Entitled 2 C/A 4 breach w/o fulfilling the cond.
- Events triggering doc.
- Express repudiation by D
- Vol. Conduct prevent from perf. duty / vol. disablement
- Totality of circ's
- Perm. excuse when subj. matter destroyed
- Temp. excuse: gone v. perm.
- D verbalizes repudiation, then temp.
- If X'ly retraction by D, then temp. excuse gone
- If unX'ly retraction by D, then becomes perm. excuse
- If innocent party rsbly changes position, then becomes perm.
- If guilty party not retract before the due date 4 fulfilling
cond., then becomes perm.
- UCC §2-609)1: rsbl grounds 4 insec. then rt. 2 ask 2
remove the doubt & only suspend the perf. not cancel b/c temp.
- Treat rsbl % as temp. excuse so can only suspend otherwise,
if treat as perm. when it isn't, then committed breach
- Also applies 2 real prop.
- Gen'ly use this doc. implicitly
- Doc. Based on Event
- Phys. impossibility
- Unforeseeable event
- Cond. must B minor b/c if essential, then unfair 2 activate
- Impact would B severe result
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