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20 Cards in this Set

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Promises are either:
Conditional or Unconditional
Conditional Promise
Conditional Promise- means my performance is subject to a condition aka (Dependant promise)
Unconditional Promise
Unconditional Promise- the performance is not subject to a condition aka (Independent promise)
Express Conditions-
those conditions that are put in the contract by the parties, either by words or by conduct. (Implied in fact)
Often expressed by the words "subject to" "on condition that" "provided that" or "if"
Constructive Conditions-
those conditions which the court put into the contract because the party failed to do so. We only consider one constructive condition. That is the condition precedent.(double check)
is a fact or event other than the mere passage of time.
Condition Precedent
if this fact or event activates a duty. The light gets turned on
Condition Subsequent-
if that factor or event discharges a duty it is called a condition subsequent. The room is light we turn off the light and it is gone.
Good example of condition precedent
Problem 136 on pg 651
Good example of condition subsequent.
p. 666 #4
4. If the company does not pay the insured’s claim, whether valid or not, within one year of the occurrence of the insured-against event, the company shall not have any further liability unless the insured shall file suit within one year period. If effect of that provision is that after that one year they do not have a duty to pay. IF you give a notice that would activate the duty to pay.
Concurrent conditions
simply has to do with a bilateral contract situation where the parties have not ordered performance. The parties have not said who has to go first. So the courts will say who does first.
Promissory condition
requires you two things to be done. First, the condition of a condition precedent. Secondly, a promise that the factor or event will occur. If you do those two things you have a promissory condition. The effect of condition not occurring is two fold. First, withhold counter performance. Secondly, It creates a cause of action. Problem 138: She can sue for $200. She does not have to give any money to him. It is a Promissory Condition. It has two parts the promise, and the condition. 1st have a condition precedent (if I make a briefcase you pay $400) 2nd promise that the condition will occur (promised to make brief). She doesn’t have to pay and she has a cause of action to sue. If you set up a promissory condition failure of that factor event gives you a right to sue.
Howard v. Federal Corp Insurance Corp.
There is a policy against forfeiters. Insurance policies are generally construed most strongly against the insurer. If there is any doubt whether words create a promise or a condition precedent they will be construed as creating a promise.
Outcome for
Condition Precedent vs. a Promise
If it was a condition precedent he would get no money. If it is a promise. We enforce the contract 35k minus the damages for not doing what was promised. Who has the burden of proving those damages? The government. In this case the amount is zero. To it is 35k – 12k( attorney fee).
Jones associates v. Eastside Properties
The issue is whether the trial court erred in dismissing Jones Associates action against Eastside Properties.
Eastside- says that the contract creates a condition precedent to payment
Jones- says that it was a promise.
Pg 658. Whether a provision is a K is a condition, depends upon the intent of the parties ascertained from a fair and reasonable construction of the language used in light of all the surrounding circumstances.
Raises the question of good faith contracts.
An intent to create a condition is often revealed by these phrases
"provided that" "on condition" "when" "so that" "while" "as soon as" "after"
Formula for Promises v. Condition
If you find that you can not convice the court that it is promise. If it is a condition you get no recover. Maybe Qantum Meriout which is the value of the services you have rendered. If they find it is a promise. You enforce the contract less damages for breach.
A way of assessing who would bear the burden of proving the condition was satisfied..
Look to see whether the party has control of the risk that is involved. Jones did not have complete control over the plat approval process. So it is not fair to put the burden of the risk on someone who is not in control. If you want to transfer that risk you have to use the clearest of language. (We will come back to this priniciple)
Gray v. Gardner
-If more sperm oil arrives this year than last year, the contract will be void.
-The way that this is drafted is a condition subsequent.
1.) It could have been written “if a greater quantity of oil arrive” therefore (that would mean the price falls) the contract is void. (CONDITION SUBSEQUENT) this benefits the buyer. Buyer has the burden of proof of showing this fact.
2) If a greater amount of oil does not arrive buyer agrees to pay $ for oil. (CONDITION PRECEDENT) The seller wants to hold the buyer to the agreement. So now the seller has the burden of proof.
This case demonstrates that most any condition can be written as a condition precedent or condition subsequent. It have the benefit of who has burden of demonstrating the proof.
Progress payments
Problem 137: Type of progress payment where the contractor has to perform then the contractor has to perform again and then he is paid again. Yes, you can sue for the 50 dollars since they promised to give you the $50. It might be called an immaterial breach. Most likely, it has nothing to do with anything that we cover this year. These are also “conditions precedents” I have no obligation to pay unless you perform. It is called an alternating “condition precedents.”