KFLCC Kingdom Law 2nd Ed.

240

CONDITION

CONDITION

the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder. Civ. Code La. art. 2024. A resolutory or dissolving condition is that which, when accomplished, operates the revo cation of the obligation, placing matters in the same state as though the obligation had not existed. It does not suspend the execution of the obligation. It only obliges the creditor to restore what he has received in case the event provided for in the condition takes place. Civ. Code La. art. 2045; Moss v. Smoker, 2 La. Ann. 991. A suspensive condition is that which depends, either on a»future and uncertain event, or on an event which has actually taken place, with out its being yet known to the parties. In the former case, the obligation cannot be executed till after the event; in the latter, the obliga tion has its effect from the day on which it was contracted, but it cannot be enforced until the event be known. Civ. Code La. art. 2043: New Orleans v Railroad Co., 171 U. S. 312, 18 Sup. Ct. 875, 43 L. Ed. 178; Moss v. Smoker, 2 La. Ann. 991. In French law. In French law, the fol lowing peculiar distinctions are made: (1) A condition is casuelle when it depends on a chance or hazard; (2) a condition Is potes tative when it depends on the accomplish ment of something which is in the power of the party to accomplish; (3) a condition is miaste when it depends partly on the will of the party and partly on the will of oth ers ; (4) a condition is suspensive when it is a future and uncertain event, or present but unknown event, upon which an obligation takes or fails to take effect; (5) a condition is resolutoire when it is the event which un does an obligation which has already had effect as such. Brown. In common law. The rank, situation, or degree of a particular person in some one of the different orders of society; or his stat us or situation, considered as a juridicial person, arising from positive law or the in stitutions of society. Thill r. Pohlman, 76 Iowa, 638, 41 N. W. 385. A clause in a contract or agreement which has for its object to suspend, rescind, or modify the principal obligation, or, in case of a will, to suspend, revoke, or modify the devise or bequest. Towle v. Remsen, 70 N. Y. 303. A modus or quality annexed by him that hath an estate, or interest or right to the same, whereby an estate, etc., may either be defeated, enlarged, or created upon an un certain event. Co. Litt 201a. A qualification or restriction annexed to a conveyance of lands, whereby it is provided that in case a particular event does or does not happen, or in case the grantor or gran tee does or omits to do a particular act, an estate shall commence, he enlarged, or be defeated. Heaston v. Randolph County, 20 Ind. 398; Cooper v. Green, 28 Ark. 54; State v. Board of Public Works, 42 Ohio St 615; Selden v. Pringle, 17 Barb. (N. Y.) 465. Classification. The different kinds of con ditions known to the common law may be ar ranged and described as follows:

They are either express or implied, the form er when incorporated in express terms in the deed, contract, lease, or grant; the latter, when inferred or presumed by law, from the nature of the transaction or the conduct of the par ties, to have been tacitly understood between them as a part of the agreement, though not expressly mentioned. 2 Crabb, Real Prop. p. 792; Bract, fol. 47; Civ. Code La. art 2026; Raley v. Umatilla County, 15 Or. 172, 13 Pac 890, 3 Am. St. Rep. 142. Express and implied conditions are also called by the older writers, respectively, conditions in deed (or in fact, the Law French term being conditions en fait) and conditions in law. Co. Litt 201a. They are possible or impossible; the former when they admit of performance in the ordinary course of events; the latter when it is con trary to the course of nature or human limita tions that they should ever be performed. They are lawful or unlawful; the former when their character is not in violation of any rule, principle, or policy of law] the latter when they are such as the law will not allow to be made. They are consistent or repugnant; the form er when they are in harmony and concord with the other parts of the transaction; the latter when they contradict, annul, or neutralize the main purpose of the contract Repugnant con ditions are also called "insensible." They are affirmative or negative; the former being a condition which consists in doing a thing; as provided that the lessee shall pay rent, etc., and the latter being a condition which consists in not doing a thing; as provided that the lessee shall not alien, etc. Shep. Touch. 118. They are precedent or subsequent. A con dition precedent is one which must happen or be performed before the estate to which it is annexed can vest or be enlarged; or it is one which is to be performed before some right de pendent thereon accrues, or some act dependent thereon is performed. Towle v. Remsen, 70 N. Y. 309: Jones v. U. S., 96 U. S. 26, 24 L. Ed. 644; Redman v. insurance Co., 49 Wis. 431, 4 N. W. 591; Beatty's Estate v. Western College, 177 111. 280, 52 N. E. 432, 42 L. R. A. 797, 69 Am. St. Rep. 242; Warner T. Bennett, 31 Conn. 475; Blean v. Messenger, 33 N. J. Law, 503. A condition subsequent is one an nexed to an estate already vested, by the per formance of which such estate is kept and con tinued, and by the failure or non-performance of which it is defeated; or it is a condition referring to a future event upon the happen ing of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. Co. Litt. 201; 2 Bl. Comm. 154; Civ. Code Cal. § 1436; Code Ga. § 2722; Goff v. Pensenhafer, 190 111. 200, 60 N. EL 110; Moran v. Stewart, 173 Mo. 207, 73 S. W. 177; Hague v. Ahrens, 53 Fed. 58, 3 C. C. A. 426; Towle v. Remsen, 70 N. Y. 309; Chapin v. School Dist, 35 N. H. 450; Blanchard v. Railroad Co., 31 Mich. 49, 18 Am. Rep. 142; Cooper v. Green, 28 Ark. 54. Conditions may also be positive (requiring that a specified event shall happen or an act be done) and restrictive or negative, the latter being such as impose an obligation not to do a particular thing, as, that a lessee shall not alien or sub-let or commit waste, or the like. Shep. Touch. 118. They may be single, copulative, or disjunc tive. Those of the first kind require the per formance of one specified thing only; those o£ the second kind require the performance of divers acts or things; those of the third kind require the performance of one of several things. Shep. Touch. 118. Conditions may also be independent, depend ent, or mutual. They belong to the first class when each of the two conditions must be per formed without any reference to the other; to