Conditions

Question 1

What is a condition?

Answer 1

A condition is an event, other than the mere passage of time, the occurrence or non-occurrence of which determines when and if a party must perform.

Question 2

What is an express condition?

Answer 2

An express condition is a condition that is spelled out by the parties and must be literally complied with.

Question 3

What is a condition subsequent?

Answer 3

A condition subsequent is where performance ceases to exist upon the occurrence of an event.

Question 4

Explain Waiver

Answer 4

1. The party who is entitled to the fulfillment of a condition may waive the condition.
2. Waiver is a voluntary relinquishment of a known right. 3. If a condition is material it cannot be waived, if a condition is not material, it can be waived.

Question 5

Prevention and Cooperation - Condition Excuse/Defense

Answer 5

1. Prevention and cooperation is a defense to the non-fulfillment of a condition in a K and specifies that implied in every contract is a condition to cooperate and not prevent the other party from performing.
2. Where on party prevents the other party from performance, the other party’s non-performance is excused.

Question 6

Extreme and Disproportionate Forfeiture - Condition Excuse/Defense

Answer 6

Extreme and disproportionate forfeiture is a defense to the non-fulfillment of a condition in a K and specifies that when the failure of a condition would amount to a forfeiture, the results of which would be disproportionate to the reason for having the condition, the condition may be excused.

Question 7

Substantial Performance

Answer 7

1. The doctrine of substantial performance refers to performance that is less than what the K requires, but is nevertheless sufficient enough to entitle the breaching party to recover.
2. The doctrine of substantial performance only applies to constructive conditions and not express conditions.
3. Was the performing party essentially done with performance?
4. Was the breach wilfull or fraudulent?
5. Was the breach material?

Question 8

What are the 4 factors of Cardozo’s 4 step test used to determine if a breach under substantial performance is material?

Answer 8

1. The purpose to be served
2. The desire to be gratified
3. The excuse for deviation
4. The cruelty of the enforced adherence