Conditions (Cond's)

Overview of Construction

  1. After Interp. Give Legal Effect of Provisions
    1. As Cond.
    2. As Duty
    3. Modernly, both duty & cond. in prom'ry duty
  2. Activation of D's Duty
    1. Uncond'al
      1. P doesn't need 2 do anything 2 activate duty
    2. Cond'al
      1. P's cond. fulfilled / excused then activated D's duty

P's Cond.

  1. Def. of Cond.
    1. Any uncert. fact / event other than passing X in perf. phase that activates D's duty
      1. No need 2 B aff. axn as long as uncert. from K'ing parties
  2. Factors 2 Det. Cond.
    1. Wording of the Provision
      1. Gen'ly cond. if expressly state: provided, cond'al / subj.
      2. Gen'ly duty if expressly state: agree, prom., shall, will, / undertake 2 do something
      3. No cond. if state: when, such X's, 5 days after, etc. b/c rsbl X not cond.
    2. Purpose of the Provision
      1. Look @ extrinsic evid. 4 purpose 2 see if cond. / duty
      2. Issue of interp. on admissible extrinsic evid. of parties' intent
    3. Materiality of the Provision
      1. Parties can make any inconseq'al event as cond. but gen'ly rational barg'ing parties wouldn't do that
    4. Source of the Lang.
      1. Look @ who wrote the lang.
      2. Gen'ly own undertaking, then duty
      3. Gen'ly what U do in exch. 4 undertaking, then cond.
    5. Presumption of Duty If Ambiguous
      1. Gen'ly construe statements as duty not cond. b/c if duty then rt. 2 enforce
      2. Policy 4 preference of bilateral K 2 give both sides enforceable rts
  3. Classification of Cond's
    1. Operative Effect
      1. Cond. Precedent
        1. Faciendo then dando / work 1st then $
        2. Cond'al duty so pay after subst'ly fulfill / render perf. before triggering any duty 2 pay
        3. Burden of convincing that cond. occurred falls on 1 making the claim / P
        4. If ambiguous & P can't prove, D wins
      2. Cond. Concurr.
        1. Two sides perf. simultaneously instead of perf. 1st like cond. precedent
        2. Perf. here by tender which is offer w/present ability 2 fulfill all the cond's
        3. Once tender, trigger duty of imm. perf. on the other party
        4. Policy of protecting from extending credit 2 somebody untrustworthy
      3. Cond. Subseq.
        1. Even if all cond. precedent / concurr. fulfilled, passage of cond. subseq. would exting. duty
        2. 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
        3. D has burden of proving this cond. b/c P proves all other cond's
        4. If ambiguous & D can't prove, P wins
    2. Manner of Creation
      1. Express
        1. Created by parties' axns as long as intended
        2. Broad meaning
        3. 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
      2. Constructive Cond. of Exch.
        1. Modernly, w/o express cond., law will construct cond. in int. of justice & giving both sides what they want
        2. Assume bilateral K & express duty is also constructive cond.
        3. Dif. K's
          1. Alternating Prom'ry Cond's K's
            1. Gen'ly work then $ so express duty which becomes constructive cond. 4 next. perf. , etc.
            2. 1st & last commitment dif.
              1. First is express uncond'al duty but others cond'al
              2. Last is only duty w/o being cond.
          2. Aleatory K's
            1. Charact'ed by assuming risk not barg & uncert. event doesn't rep. barg. on the other side
            2. No constructive cond. of exch. so indep. duties but can still have express cond's

Possibilities of Cond's

  1. Failure
    1. P not entitled 2 C/A b/c only duty of imm. perf. is capable of breach
    2. Can B just 1 failed cond. 4 D 2 win
  2. Strictly Fulfill
    1. Activates duty 2 duty of imm. perf. if fulfill ALL cond's
    2. Can go forward 2 det. if duty breached so possibility of recov.
    3. Two Kinds of Cond's 4 Failure / Fulfill of Cond's
      1. Satisfaction
        1. Subj. meaning is person asking 4 the service
        2. Obj. meaning is satisfaction 2 3rd party / typical member of trade
        3. Constructional Tendencies When Ambiguous Lang.
          1. Gen'ly obj. stand. 4 prom'or's satisfaction & subj. stand. 4 3rd party's satisfaction
          2. Artistic subj. matter: subj. stand. b/c obj. stand. less feasible
          3. Commercial. subj. matter: obj. stand. b/c feasible & motive 2 lie otherwise
          4. Artistic subj. matter & 3rd party: subj. stand. b/c trust 3rd party more
          5. Commercial subj. matter & 3rd party: varies by state b/c 3rd party 4 subj. stand. but commercial 4 obj. stand.
          6. If express & clear lang, then above categories not matter
      2. Notice / Demand (in material)
  3. Excuse
    1. Not fulfilled but as policy excused
    2. Activates duty but might not get same recov. as strict fulfillment
    3. Split of auth. on excusing evid. cond. when fulfill subst. cond. / subst'ly perf'ed
    4. Doc's Based on P's Cond.
      1. Subst'l Perf.
        1. Basic policy that both sides get what they want & avoid lopsided result
        2. Imp. in construction K
        3. If get almost everything, then excused
        4. Type of Cond's This Applies 4
          1. Split of auth.
            1. Not recog. @ all
            2. Recog. only constructive cond. in construction K
            3. Recog. constructive cond. in all K's
          2. Gen'ly, if recog, will only do so in constructive cond. of exch., not express cond.
        5. Elements Triggering Subst'l Perf.
          1. Obj., trivial, remaining work, purpose in fn, & econ. waste 2 finish
          2. Subj. S/M 4 Innocent
            1. If intentionally deviate 4 better prod., o.k.
            2. If intentionally deviate b/c no choice, o.k.
            3. If intentionally deviate b/c want dif. look, bad faith
        6. Stand.'s of Subst'l Perf.
          1. Vague, broad purpose & essential fn.
          2. Fixed, structural defect
          3. Middle, 10% failure failure then no subst'l perf.
          4. If want precedence, then specif. stand. but if justice 4 indiv. case, then vague stand.
        7. Effect of Application
          1. Cost of compl'ion / lwred value deducted from award
      2. Prevention of Forfeiture (Min. Jxn)
        1. Close 2 subst'l perf.
        2. X'ing is essential 4 mortgage & option K's
        3. Rest. recog's & req. severe forefeiture, immaterial forefeiture, & good faith not intentional
    5. Doc's Based on D's Conduct
      1. Three Types of Waivers
        1. Estoppel
          1. Before P can fulfill cond., D led P 2 believe D wasn't going 2 insist on fulfillment
          2. Rsbl expectation in P's minds when had ability 2 fulfill cond.
          3. P relied by foregoing the cond.
          4. Implicit prom.'ry estoppel (PE)
          5. Revocable if X'ly change mind
        2. Election
          1. D's conduct after cond's failure
          2. Irrevocable
          3. 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
            1. Knowing
            2. Vol. receipt of benefit
            3. Wasn't entitled 2 benefit
        3. Intentional
          1. D's conduct after cond's failure
          2. Slipperiest so quest'able if should recog. this when proof of intent gen'ly not good any X else +
          3. Quest. on proper application of doc.
          4. Must prove intentional relinq. of known rt. by subj. intent
          5. Split of auth's
            1. Not recog.
            2. Recog. in inconseq. stuff
            3. Recog. across the board
      2. Prevention / Hindrance by D
        1. Before P's failure of cond.
        2. If D's conduct is wrongful interference, will excuse if causes tech. failure
        3. Cond. must B intentional / neg. +
        4. P not foresee D's conduct & didn't assume risk of D's conduct
        5. Evolution of Doc.
          1. Active conduct abs'ly prevent
          2. Passive non-coop. subst'ly hinder cond's fulfillment
          3. Wrongful cond. must B but 4 cause
      3. D's Statement of Unjustifiable Rsn 4 Refusing Perf.
        1. Slip of the tongue fatal if speak up by D
        2. 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
        3. Step beyond intentional waiver
          1. Maj. req. D had subj. intent 2 waive 4 fatal slip of the tongue
        4. UCC 2-605
          1. Sub 1)a: Defect ascertainable by rsbl inspection & per. 2 cure if stated seasonably by seller so estoppel excuse
          2. 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)
      4. Prospective Non Perf. (also doc. based on event category)
        1. 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.
        2. Cond. precedent
        3. Entitled 2 C/A 4 breach w/o fulfilling the cond.
        4. Events triggering doc.
          1. Express repudiation by D
          2. Vol. Conduct prevent from perf. duty / vol. disablement
          3. Totality of circ's
        5. Perm. excuse when subj. matter destroyed
        6. Temp. excuse: gone v. perm.
          1. D verbalizes repudiation, then temp.
          2. If X'ly retraction by D, then temp. excuse gone
          3. If unX'ly retraction by D, then becomes perm. excuse
          4. If innocent party rsbly changes position, then becomes perm. excuse
          5. If guilty party not retract before the due date 4 fulfilling cond., then becomes perm.
        7. 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. excuse
        8. Treat rsbl % as temp. excuse so can only suspend otherwise, if treat as perm. when it isn't, then committed breach
        9. Also applies 2 real prop.
        10. Gen'ly use this doc. implicitly
    6. Doc. Based on Event
      1. Impossibility
        1. Phys. impossibility
        2. Unforeseeable event
        3. Cond. must B minor b/c if essential, then unfair 2 activate the duty
        4. Impact would B severe result

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