Sometimes
there seems to be a reference to the usual course of events, and
matters belong to the defence because they are only exceptionally
true.
The most logical distinction would be between conditions which
must be satisfied before a promise can be broken, and those
which, like the last, discharge the liability after a breach has
occurred. /1/ But this is of the slightest possible importance,
and it may be doubted whether another case like the last could be
found.
It is much more important to mark the distinction between a
stipulation which only has the effect of confining a promise to
certain cases, and a condition properly so called. Every
condition, it is true, has this effect upon the promise to which
it is attached, so that, whatever the rule of pleading may be,
/2/ a promise is as truly kept and performed by doing nothing
where the condition of the stipulated act has been broken, as it
would have been by doing the act if the condition had been
fulfilled. But if this were all, every clause in a contract which
showed what the promisor did not promise would be a condition,
and the word would be worse than useless. The characteristic
feature is quite different.
A condition properly so called is an event, the happening of
which authorizes the person in whose favor the condition is
reserved to treat the contract as if it had not been made,--to
avoid it, as is commonly said,--that is, to insist on both
parties being restored to the position in [319] which they stood
before the contract was made.
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