Also known as: express conditions · express contractual condition
Written by attorneys — see sources below.
An explicit contractual or donative provision stating that a party's duty to perform arises or is extinguished only upon the occurrence or nonoccurrence of a specified event. The language must clearly manifest the parties' or transferor's intent to create the contingency rather than a mere promise. Full and literal compliance is ordinarily required before the duty becomes due or is discharged.
Elena Estrada's will left her estate to her grandchildren provided they survived her. After Elena's death the grandchildren argued the clause required survival only until her death. The court construed the ambiguous survival language to require survival until the distribution date, so a grandchild who died shortly after Elena but before distribution took nothing.
Eclipse Manufacturing issued a promissory note to Edgewater Capital stating payment was due only if Eclipse obtained a specific government contract. When the contract never materialized, Edgewater demanded payment anyway. Because the note contained an express condition to payment, Eclipse had no duty to pay until the stated event occurred.
Ewan Eckhart rented a flat from Emma Erickson expressly conditioned on the coronation procession passing by the window. When the king fell ill and the procession was canceled, Ewan refused to pay the balance. The express condition failed through no fault of either party, discharging both sides from further performance.
The plaintiff, Paul Krell, sued the defendant, C. S. Henry, for fifty pounds as the balance of seventy-five pounds agreed for the hire of a flat at 56A Pall Mall for the days of June 26 and 27. The parties understood that the rooms were to be used to view the coronation processions, and a deposit of twenty-five pounds was paid. Subsequently, the defendant saw an announcement that windows to view the coronation processions were to be let. He spoke to the housekeeper and agreed to take the suite for the two days. On June 20 the defendant sent a letter submitting a cheque for twenty-five pounds as a deposit and asking confirmation that he should have the entire use of the rooms during the days of June 26 and 27, with the balance of fifty pounds to be paid on June 24. The plaintiff's solicitor replied confirming the agreement. When the coronation processions did not take place on June 26 and 27, the defendant declined to pay the balance of fifty pounds and counterclaimed for the return of his twenty-five pounds deposit on the ground of total failure of consideration. Darling J. held that there was an implied condition that the procession should take place and gave judgment for the defendant. The plaintiff appealed.
View caseEileen Epstein borrowed from Elite Dynamics under a deed of trust requiring written notice and a thirty-day cure period before acceleration. After missing one payment, Elite posted foreclosure papers without notice. Because the express condition of proper notice and cure was never satisfied, the lender could not yet accelerate the full balance.
An express condition arises from the parties' explicit contractual language making performance contingent on a stated event. A constructive condition is supplied by the court as a matter of interpretation or fairness when the contract is silent. Courts enforce express conditions literally while constructive conditions are usually satisfied by substantial performance.
Yes. When parties expressly condition a duty on a specified event, courts require full and literal compliance rather than substantial performance. This strict rule protects the parties' manifested intent that the condition control whether performance is due.
Courts may excuse an express condition to avoid extreme forfeiture when the condition is not a material part of the exchange, or when a party's prevention, repudiation, or bad-faith conduct materially contributed to the nonoccurrence. Impracticability can also excuse the condition in limited circumstances.
Supporting sources
Doubtful words are construed as creating a promise rather than an express condition. This preference avoids forfeiture and treats the doubtful term as one whose breach gives rise to damages rather than excusing the other party's performance entirely.
…but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state of things going to the root of the contract and essential to its performance. The condition or state of things need not be expressly specified in the contract if it clearly appears…