CONDITION,
contracts, wills. In its most extended signification, a condition is a
clause in a contract or agreement which has for its object to suspend,
to rescind, or to modify the principal obligation; or in case of a will,
to suspend, revoke, or modify the devise or bequest. 1 Bouv. Inst. n.
730. It ii in fact by itself, in many cases, an agreement; and a
sufficient foundation as an agreement in writing, for a bill in equity,
praying for a specific performance. 2 Burr. 826. In pleading, according
to the course of the common Iaw, the bond and its condition are to some
intents and purposes, regarded as distinct things. 1 Saund. Rep. by Wms.
9 b. Domat has given a definition of a condition, quoted by Hargrave,
in these words: "A condition is any portion or agreement which regulates
what the parties have a mind should be done, if a case they foresee
should come to pass." Co. Litt. 201 a.
2.
Conditions sometimes suspend the obligation; as, when it is to have no
effect until they are fulfilled; as, if I bind myself to pay you one
thousand dollars ou condition that the ship Thomas Jefferson shall
arrive in the United States from Havre; the contract is suspended until
the arrival of the ship.
3.
The condition sometimes rescinds the contract; as, when I sell you my
horse, on condition that he shall be alive on the first day of January,
and he dies before that time.
4.
A condition may modify the contract; as, if I sell you two thousand
bushels of corn, upon condition that my crop shall produce that much,
and it produces only fifteen hundred bushels.
5.
In a less extended acceptation, but in a true sense, a condition is a
future and uncertain event, on the existence or non-existence of which
is made to depend, eitther the accomplishment, the modification, or the
rescission of an obligation or testamentary disposition.
6.
There is a marked difference between a condition and a limitation. When
a in is given generally, but the gift may defeated upon the happening
of an uncertain event, the latter is called a condition but when it is
given to be enjoyed until the event arrives, it is a limitation. See
Limitation; Estates. It is not easy to say when a condition will be
considered a covenant and when not, or when it will be holden to be
both. Platt on Cov. 71.
7.
Events foreseen by conditions are of three kinds. Some depend on the
acts of the persons who deal together, as, if the agreement should
provide that a partner should not join another partnership. Others are
independent of the will of the parties, as, if I sell you one thousand
bushels of corn,. on condition that my crop shall not be destroyed by a
fortuitous event, or act of God. Some depend in part on the contracting
parties and partly on the act of God, as, if it be provided that such
merchandise shall arrive by a certain day.
8.
A condition may be created by inserting the very word condition, or on
condition, in the deed or agreement; there are, however, other words
that will do so as effectually, as proviso, if, &c. Bac. Ab.
Conditions, A.
9.
Conditions are of various kinds; 1. as to their form, they are express
or implied. This division is of feudal origin. 2 Woodes. Lect. 138. 2.
As to their object, they are lawful or unlawful; 3. as to the time when
they are to take effect, they are precedent or subsequent; 4. as to
their nature, they are possible or impossible 5. as to their operation,
they are positive or negative; 6. is to their divisibility, they are
copulative or disjunctive; 7. as to their agreement with the contract,
they are consistent or repugnant; 8. as to their effect, they are
resolutory or suspensive. These will be severally considered.
10.
An express condition is one created by express words; as for instance, a
condition in a lease that if the tenant shall not pay the rent at the
day, the lessor may reenter. Litt. 328. Vide Reentry.
11.
An implied condition is one created by law, and not by express words;
for example, at common law, the tenant for life holds upon the implied
condition not to commit waste. Co. Litt. 233, b.
12
. A lawful or legal condition is one made in consonance with the law.
This must be understood of the law as existing at the time of making the
condition, for no change of the law can change the force of the
condition. For example, a conveyance was made to the grantee, on
condition that he should not aliens until be reached the age of
twenty-five years. Before he acquired this age be aliened, and made a
second conveyance after he obtained it; the first deed was declared
void, and the last valid. When the condition was imposed, twenty-five
was the age of majority in the state; it was afterwards changed to
twenty-one. Under these circumstances the condition was held to be
binding. 3 Miss., R. 40.
13.
An unlawful or illegal condition is one forbidden by law. Unlawful
conditions have for their object, lst. to do something malum in se, or
malum prohibitum; 2d. to omit the performance of some duty required by
law 3d. to encourage such act or omission. 1 P. Wms. 189. When the law
prohibits, in express terms, the transaction in respect to which the
condition is made, and declares it void, such condition is then void; 3
Binn. R. 533; but when it is prohibited, without being declared void,
although unlawful, it is not void. 12 S. @ R. 237. Conditions in
restraint of marriage are odious, and are therefore held to the utmost
rigor and strictness. They are contrary to sound policy, and by the
Roman law were all void. 4 Burr. Rep. 2055; 10 Barr. 75, 350; 3 Whart.
575.
14.
A condition precedent is one which must be performed before the estate
will vest, or before the obligation is to be performed. 2 Dall. R. 317.
Whether a condition shall be considered as precedent or subsequent,
depends not on the form or arrangement of the words, but on the manifest
intention of the parties, on the fair construction of the contract. 2
Fairf. R. 318; 5 Wend. R. 496; 3 Pet, R. 374; 2 John. R. 148; 2 Cain es,
R. 352; 12 Mod. 464; 6 Cowen, R. 627 9 Wheat. R. 350; 2 Virg. Cas. 138
14 Mass. R. 453; 1 J. J. Marsh. R. 591 6 J. J. Marsh. R. 161; 2 Bibb, R.
547 6 Litt. R. 151; 4 Rand. R. 352; 2 Burr. 900
15.
A subsequent condition is one which enlarges or defeats an estate or
right, already created. A conveyance in fee, reserving a life estate in a
part of the land, and made upon condition that the grantee shall pay
certain sums of money at divers times to several persons, passes the fee
upon condition subsequent. 6 Greenl. R. 106. See 1 Burr. 39, 43; 4
Burr. 1940. Sometimes it becomes of great importance to ascertain
whether the condition is precedent or subsequent. When a precedent
condition becomes impossible by the act of God, no estate or right
vests; but if the condition is subsequent, the estate or right becomes
absolute. Co. Litt. 206, 208; 1 Salk. 170.
16. A possible condition is one which may be performed, and there is nothing in the laws of nature to prevent its performance.
17.
An impossible condition is one which cannot be accomplished according
to the laws of nature; as, to go from the United States to Europe in one
day.; such a condition is void. 1 Swift's Dig. 93; 5 Toull. n. 242-247.
When a condition becomes impossible by the act of God, it either vests
the estate, or does not, as it is precedent or subsequent: when it is
the former, no estate vests when the latter, it becomes absolute. Co.
Litt. 206, a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the
performance of the condition becomes impossible by the act of the party
who imposed it, the estate is rendered absolute. 5 Rep. 22; 3 Bro. Parl.
Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab. 420;
Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10;
Dig. 28, 7, 1; Id. 44, 7, 31; Code 6, 25, 1; 6 Toull. n. 486, 686 and
the article Impossibility.
18.
A positive condition requires that the event contemplated shall happen;
as, If I marry. Poth. Ob. part 2, c. 3, art. 1, 1. 19. A negative
condition requires that the event contemplated shall not happen as If I
do not marry. Potb. Ob. n. 200.
20.
A copulative condition, is one of several distinct-matters, the whole
of which are made precedent to the vesting of an estate or right. In
this case the entire condition must be performed, or the estate or right
can never arise or take place. 2 Freem. 186. Such a condition differs
from a disjunctive condition, which gives to the party the right to
perform the one or the other; for, in this case, if one becomes
impossible by the act of God, the whole will, in general, be excused.
This rule, however, is not without exception. 1 B. & P. 242; Cro.
Eliz. 780; 5 Co. 21; 1 Lord Raym. 279. Vide Conjunctive; Disjunctive.
21.
A disjunctive condition is one which gives the party to be affected by
it, the right to perform one or the other of two alternatives.
22. A consistent condition is one which agrees with other parts of the contract.
23.
A repugnant condition is one which is contrary to the contract; as, if I
grant to you a house and lot in fee, upon condition that you shall not
aliene, the condition is repugnant and void, as being inconsistent with
the estate granted. Bac. Ab. Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.
24.
A resolutory condition in the civil law is one which has for its
object, when accomplished the revocation of the principal obligation.
This condition does not suspend either the existence or the execution of
the obligation, it merely obliges the creditor to return what he has
received.
25.
A suspensive condition is one which susends the fulfilment of the
obligation until it has been performed; as, if a man bind himself to pay
one -hundred dollars, upon condition that the ship Thomas Jefferson
shall arrive from Europe. The obligation, in this case, is suspended
until the arrival of the ship, when the condition having been performed,
the obligation becomes absolute , and it is no longer conditional. A
suspensive condition is in fact a condition precedent.
26. Pothier further divides conditions into potestative, casual and mixed.
27.
A potestative condition is that which is in the power of the person in
whose favor it is contracted; as, if I engage to give my neighbor a sum
of money, in case he outs down a tree which obstructs my. prospect.
Poth. Obl. Pt. 2, c. 3, art. 1, 1.
28.
A casual condition is one which depends altogether upon chance, and not
in the power of the creditor, as the following: if I have children; if I
have no children; if such a vessel arrives in the United States,
&c. Poth. Ob. n. 201.
29.
A mixed condition is one which depends on the will of the creditor and
of a third person; as, if you marry my cousin. Poth. Ob. n. 201. Vide,
generally, Bouv. Inst. Index, h. t.
CONDITION,
persons. The situation in civil society which creates certain relations
between the individual, to whom it is applied, and one or more others,
from which mutual rights and obligations arise. Thus the situation
arising from marriage gives rise to the conditions of husband and wife
that of paternity to the conditions of father and child. Domat, tom. 2,
liv. 1, tit. 9, s. 1, n. 8.
2.
In contracts every one is presume to know the condition of the person
with whom he deals. A man making a contract with an infant cannot
recover against him for a breach of the contract, on the ground that he
was not aware of his condition.
CONDITIONAL OBLIGATION. One which is superseded by a condition under which it was created and which is not yet accomplished. Poth. Obl. n. 176, 198.
CONDITIONS OF SALE,
contracts. The terms upon which the vendor of property by auction pro
poses to sell it; the instrument containing these terms, when reduced to
writing or printing, is also called the conditions of sale.
2.
It is always prudent and advisable that the conditions of sale should
be printed and exposed in the auction room; when so done, they are
binding ou both parties, and nothing that is said at the time of sale,
to add to or vary such printed conditions, will be of any avail. 1 H.
Bl. 289 12 East, 66 Ves. 330; 15 Ves. 521; 2 Munf. Rep. 119; 1 Desauss.
Ch. Rep. 573; 2 Desauss. Ch. R. 320; 11 John. Rep. 555; 3 Camp. 285.
Vide forms of conditions of sale in Babington on Auctions, 233 to 243;
Sugd. Vend. Appx. No. 4. Vide duction; ductioneer; Puffer.
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