CONDITION

condition,n.1. A future and uncertain event on which the existence or extent of an obligation or liability depends; an uncertain act or event that triggers or negates a duty to render a promised performance. • For example, if Jones promises to pay Smith $500 for repairing a car, Smith’s failure to repair the car (an implied or constructive con-dition) relieves Jones of the promise to pay.[Cases: Contracts  218–227. C.J.S. Architects § 16; Contracts §§ 355–358, 362, 444–445, 450,557–560.]

“ ‘Condition’ is used in this Restatement to denote an event which qualifies a duty under a contract. It is recognized that ‘condition’ is used with a wide variety of other meanings in legal discourse. Sometimes it is used to denote an event that limits or qualifies a transfer of property. In the law of trusts, for example, it is used to denote an event such as the death of the settlor that qualifies his disposition of property in trust. Sometimes it is used to refer to a term in an agreement that makes an event a condition, or more broadly to refer to any term in an agreement (e.g., ‘standard conditions of sale’). For the sake of precision, ‘condition’ is not used here in these other senses.” Restatement (Second) of Contracts § 224 cmt. a (1981).

“Strictly, a condition is a fact or event on the occurrence of which some legal right or duty comes into existence; a party may promise that this fact is so, or that the event will take place, but it is equally possible that no party to the contract promises this. An insurance company promises to pay £ 10,000 to an insured person if his house is destroyed by fire; the destruction of the house by fire is a condition of the insurer’s promise to pay, but neither party promises to burn the house.” P.S. Atiyah, An Introduction to the Law of Contract 146 (3d ed. 1981).

“Promises and the duties they generate can be either unconditional (‘I promise to pay you $100,000’) or condi-tional (‘I promise to pay you $100,000 if your house burns down’). Lawyers use condition in several senses. Sometimes they use it to refer to the term in the agreement that makes the promise conditional…. However, lawyers also use condition to refer to an operative fact rather than to a term. According to the Restatement Second a condition is ‘an event, not certain to occur, which must occur, unless occurrence is excused, before performance under a contract becomes due.’ This use of the word has the support of leading writers.” E. Allan Farnsworth, Contracts § 8.2, at 519–20 (3d ed. 1999).

2. A stipulation or prerequisite in a contract, will, or other instrument, constituting the essence of the instrument. • If a court construes a contractual term to be a condition, then its untruth or breach will entitle the party to whom it is made to be discharged from all liabilities under the contract. [Cases: Contracts  218–227; Wills  639–668. C.J.S. Architects § 16; Contracts §§ 355–358, 362, 444–445, 450, 557–560; Wills §§ 1380–1424.] affirmative condition.See positive condition. casual condition.Civil law. A condition that depends on chance; one that is not within the power of either party to an agreement. collateral condition.A condition that requires the performance of an act having no relation to an agreement’s main purpose. compulsory condition.A condition expressly requiring that a thing be done, such as a tenant’s paying rent on a certain day. concurrent condition.A condition that must occur or be performed at the same time as another condition, the performance by each party separately operating as a condition precedent; a condition that is mutually dependent on another, arising when the parties to a contract agree to exchange performances simultaneously. — Also termed condition concurrent. [Cases: Contracts  225. C.J.S. Contracts § 362.]

“Conditions concurrent are acts that the parties to a contract are under duties of performing concurrently, the act of each party being separately operative as a condition precedent. The act is not concurrent with the legal relation affected, but only with the act of the other party.” William R. Anson, Principles of the Law of Contract 412–13 (Arthur L. Corbin ed., 3d Am. ed. 1919).condition implied by law.See constructive condition. condition implied in law.See constructive condition. condition    precedent (pr<<schwa>>-seed-<<schwa>>nt alsopres-<<schwa>>-d<< schwa>>nt). An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises. • If the condition does not occur and is not excused, the promised performance need not be rendered. The most common condition contemplated by this phrase is the immediate or unconditional duty of performance by a promisor. [Cases: Contracts 221. C.J.S. Contracts §§ 356, 444–445, 450.]

“Before one gets too confused by the precedent and subsequent classifications, it might be helpful to know that in contract law there is no substantive difference between the two…. However, in the area of pleading and procedure significance may be placed upon the difference between a condition precedent and subsequent in terms of who has the burden of pleading and proof, the party seeking to enforce the promise usually being required to plead and prove a condition precedent and the party seeking to avoid liability for breach of promise sometimes being re-quired to plead and prove the occurrence of the condition subsequent that would terminate his duty.” Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 313 (4th ed. 1997).

condition subsequent.A condition that, if it occurs, will bring something else to an end; an event the existence of which, by agreement of the parties, discharges a duty of performance that has arisen. [Cases: Contracts  226. C.J.S. Architects § 16; Contracts § 357.]

“If … the deed or will uses such words as ‘but if,’ ‘on condition that,’ ‘provided, however,’ or ‘if, however,’ it will generally be assumed that a condition subsequent was intended.” Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 50 (2d ed. 1984).

constructive condition.A condition contained in an essential contractual term that, though omitted by the parties from their agreement, a court has supplied as being reasonable in the circumstances; a condition imposed by law to do justice. • The cooperation of the parties to a contract, for example, is a constructive condition. — Also termed implied-in-law condition; condition implied by law; condition implied in law. Cf. implied-in-fact condition. [Cases: Contracts  220. C.J.S. Contracts § 355.]

“[C]onstructive conditions are imposed by law to do justice…. The dividing line between an express condition … and constructive conditions is often quite indistinct. Yet, the distinction is often of crucial importance. The general rule governing an express condition is that it must be strictly performed. The general rule as to constructive conditions is that substantial compliance is sufficient.” John D. Calamari & Joseph M. Perillo, The Law of Con-tracts § 11.8, at 402 (4th ed. 1998). copulative condition (kop-y<<schwa>>-l<<schwa>>-tiv or -lay-tiv). A condition requiring the performance of more than one act. Cf. disjunctive condition; single condition. dependent condition.A mutual covenant that goes to the consideration on both sides of a disjunctive condition.A condition requiring the performance of one of several acts. Cf. copulative condition; single condition. dissolving condition.See resolutory condition. express condition. 1. A condition that is the manifested intention of the parties. [Cases: Contracts  219.] “[E]xpress conditions … are conditions created through the agreement of the parties. This is so whether the in-tention to have the duty subject to a condition be manifested in words, or through any other conduct or type of utterance.” John Edward Murray Jr., Murray on Contracts § 143, at 290 (2d ed. 1974).

2. A condition that is explicitly stated in an instrument; esp., a contractual condition that the parties have reduced to writing. implied condition.A condition that is not expressly mentioned, but is imputed by law from the nature of the transaction or the conduct of the parties to have been tacitly understood between them as a part of the agreement. See constructive condition; implied-in-fact condition. [Cases: Contracts  220. C.J.S. Contracts § 355.] implied-in-fact condition.A contractual condition that the parties have implicitly agreed to by their conduct or by the nature of the transaction. Cf. constructive condition. [Cases: Contracts  220. C.J.S. Contracts § 355.] implied-in-law condition.See constructive condition. inherent condition.A condition that is an intrinsic part of an agreement; a condition that is not newly imposed but is already present in an agreement. lawful condition.A condition that can be fulfilled without violating the law. mixed condition.Civil law. A condition that depends either on the will of one party and the will of a third person, or on the will of one party and the happening of a causal event.

negative condition.A condition forbidding a party from doing a certain thing, such as prohibiting a tenant from subletting leased property; a promise not to do something, usu. as part of a larger agreement. — Also termed restrictive condition. See negative easement under EASEMENT. positive condition.A condition that requires some act, such as paying rent. — Also termed affirmative condition. potestative condition (poh-tes-t<<schwa>>-tiv).Civil law. A condition that will be fulfilled only if the obligated party chooses to do so. • Louisiana no longer uses this term, instead providing that this type of condition will render the obligation null. La. Civ. Code art. 1770. Cf. suspensive condition; resolutory condition. [Cases: Contracts  10. C.J.S. Contracts § 108.]

preexisting condition.Insurance. A physical or mental condition evident during the period before the effective date of a medical-insurance policy. • Typically, coverage for later treatment for such a condition is excluded if symptoms of the condition were present during the period before the policy was effective. [Cases: Insurance  2475.] promissory condition.A condition that is also a promise.

“The distinction between a condition which is also a promise, and a condition which is not the subject of a promise, is often one of great difficulty and importance, especially where the term is implied and not expressed, and it is unfortunate that legal usage has sanctioned the word ‘condition’ for two such different concepts. It would at least be desirable if lawyers could be persuaded to refer to conditions which are the subject of a promise as ‘promissory conditions’, a usage which it is proposed to adopt here.” P.S. Atiyah, An Introduction to the Law of Contract 147 (3d ed. 1981).

resolutory condition (r<<schwa>>-zol-y<<schwa>>-tor-ee).Civil law. A condition that upon fulfillment termi-nates an already enforceable obligation and entitles the parties to be restored to their original positions. — Also termed resolutive condition; dissolving condition. Cf. potestative condition. restrictive condition.See negative condition. single condition.A condition requiring the performance of a specified thing. Cf. copulative condition; disjunctive condition.

suspensive condition.Civil law. A condition that makes an obligation mandatory only if a specified but uncertain event occurs. Cf. potestative condition. [Cases: Contracts  222. C.J.S. Contracts §§ 356–357.] testamentary condition.A condition that must be satisfied before a gift made in a will becomes effective. triggering condition.A circumstance that must exist before a legal doctrine applies; esp., in criminal law, a cir-cumstance that must exist before an actor will be entitled to a justification defense.unlawful condition.A condition that cannot be fulfilled without violating the law.

3. Loosely, a term, provision, or clause in a contract. [Cases: Sales  85(1); Vendor and Purchaser  79. C.J.S. Sales §§ 99–101, 154; Vendor and Purchaser §§ 125, 141.]“This term condition is generally used to de-scribe any fact, subsequent to the formation of a contract, which operates to make the duty of a promisor immediately active and compelling. Such a fact may be described as such in a term of the contract or it may not. In either event, the term of the contract should not itself be called the condition…. It is not uncommon, popularly, to speak of a condition of the contract as synonymous with term or provision of the contract. This should be avoided.” William R. Anson, Principles of the Law of Contract 226 n.1 (Arthur L. Corbin ed., 3d Am. ed. 1919).

“The word ‘condition’ is used in the law of property as well as in the law of contract and it is sometimes used in a very loose sense as synonymous with ‘term,’ ‘provision,’ or ‘clause.’ In such a sense it performs no useful service.” Id. at 409. A qualification attached to the conveyance of property providing that if a particular event does or does not take place, the estate will be created, enlarged, defeated, or transferred. 5. A state of being; an essential quality or status. — condition,vb. artificial condition.A physical characteristic of real property, brought about by a person’s affirmative act instead of by natural forces.

dangerous condition. 1. A property defect creating a substantial risk of injury when the property is used in a reasonably foreseeable manner. • A dangerous condition may result in waiver of sovereign immunity. [Cases: Automobiles  258; Municipal Corporations  847; Negligence  1086. C.J.S. Motor Vehicles §§ 443, 448–449, 451, 463–464, 467; Municipal Corporations §§ 805–807; Negligence §§ 469–470, 573–574, 580.] 2. A property risk that children, because of their immaturity, cannot appreciate or avoid. [Cases: Negligence  1016, 1067. C.J.S. Negligence §§ 472–495, 513.] [Blacks Law 8th]