Also known as: express condition · express conditional
Written by attorneys · grounded in primary & secondary sources — see below
A condition that parties create by stating it explicitly in their contract language. Satisfaction of the condition is required before a duty to perform arises or is discharged.
Ezra Eastman left a trust providing that the principal would pass to his surviving children at the trustee's distribution date. One child predeceased the distribution date. The court construed the survival requirement to apply at distribution, so the deceased child's share did not pass to that child.
Elemental Pharmaceuticals issued a promissory note stating payment would occur only if the holder first delivered proof of a performance bond. The holder tendered the note without the bond documentation. Payment was not due because the express condition to payment remained unsatisfied.
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Seller Apex Machines agreed to deliver custom equipment to Buyer Beta Industries only after an independent inspector certified compliance with specifications. Apex tendered the machines without obtaining the certificate. Beta had no duty to accept or pay because the express condition of certification remained unsatisfied.
Developer Orion Homes contracted to convey lots to Purchaser Summit LLC only upon delivery of clear title free of liens. Orion tendered deeds while two liens remained of record. Summit was not obligated to pay the purchase price because the express condition of clear title had not occurred.
An express condition arises only when the parties use clear language in the contract to make an event a prerequisite to performance. A constructive condition is supplied by the court to avoid injustice even though the parties did not state it.
Strict compliance is required. Substantial performance does not satisfy an express condition because the parties themselves designated the precise event that must occur.
Non-occurrence is excused if the other party's breach or repudiation materially contributed to the failure of the condition. Prevention, waiver, or forfeiture doctrines may also excuse the condition in limited circumstances.
Yes. Language requiring survival is an express condition of survival. When the time of survival is unclear, the condition is construed to require survival until the distribution date unless other language shows a different intent.
…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…