The conditions which a contract may contain have been divided by
theorists into conditions precedent and conditions subsequent.
The distinction has even been pronounced of great importance. It
must be admitted that, if the course of pleading be taken as a
test, it is so. In some cases, the plaintiff has to state that a
condition has been performed in order to put the defendant to his
answer; in others, it is left to the defendant to set up that a
condition has been broken.
In one sense, all conditions are subsequent; in another, all are
precedent. All are subsequent to the first stage of the
obligation. /4/ Take, for instance, the case of a promise to pay
for work if done to the satisfaction of an architect. The
condition is a clear case of what is called a condition
precedent. There can be no duty to pay until the architect is
satisfied. But there can be a [317] contract before that moment,
because the determination whether the promisor shall pay or not
is no longer within his control. Hence the condition is
subsequent to the existence of the obligation.
On the other hand, every condition subsequent is precedent to the
incidence of the burden of the law. If we look at the law as it
would be regarded by one who had no scruples against doing
anything which he could do without incurring legal consequences,
it is obvious that the main consequence attached by the law to a
contract is a greater or less possibility of having to pay money.
Pages:
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394