Conditions may be created by the very words of a contract. Of
such cases there is nothing to be said, for parties may agree to
what they choose. But they may also be held to arise by
construction, where no provision is made in terms for rescinding
or avoiding the contract in any case. The nature of the
conditions which the law thus reads in needs explanation. It may
be said, in a general way, that they are directed to the
existence of the manifest grounds for making the bargain on the
side of the rescinding party, or the accomplishment of its
manifest objects. But that is not enough. Generally speaking, the
disappointment must be caused by the wrong-doing of the person on
the other side; and the most obvious cases of such wrong-doing
are fraud and misrepresentation, or failure to perform his own
part of the contract.
Fraud and misrepresentation thus need to be considered once more
in this connection. I take the latter first. In dealing with it
the first question which arises is whether the representation is,
or is not, part of the contract. If the contract is in writing
and the representation is set out on the face of the paper, it
may be material or immaterial, but the effect of its untruth will
be determined on much the same principles as govern the failure
to perform a promise on the same side.
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