I think that it may now be assumed that, when fraud, misrepresentation, or mistake is said to make a contract void, there is no new principle which comes in to set aside an otherwise perfect obligation, but that in every such case there is wanting one or more of the first elements which were explained in the foregoing Lecture.Either there is no second party, or the two parties say different things, or essential terms seemingly consistent are really inconsistent as used.
When a contract is said to be voidable, it is assumed that a contract has been made, but that it is subject to being unmade at the election of one party.This must be because of the breach of some condition attached to its existence either expressly or by implication.
If a condition is attached to the contract's coming into being, there is as yet no contract.Either party may withdraw, at will, until the condition is determined.There is no obligation, although there may be an offer or a promise, and hence there is no relation between the parties which requires discussion here.
But some conditions seemingly arising out of a contract already made are conditions of this sort.Such is always the case if the condition of a promise lies within the control of the promisor's own will.For instance, a promise to pay for clothes if made to the customer's satisfaction, has been held in Massachusetts to make the promisor his own final judge. So interpreted, it appears to me to be no contract at all, until the promisor's satisfaction is expressed.His promise is only to pay if he sees fit, and such a promise cannot be made a contract because it cannot impose any obligation. If the promise were construed to mean that the clothes should be paid for provided they were such as ought to satisfy the promisor, and thus to make the jury the arbiter, there would be a contract, because the promisor gives up control over the event, but it would be subject to a condition in the sense of the present analysis.
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. 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 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.
The only question from the purely legal point of view is whether the promisor will be compelled to pay.And the important moment is that at which that point is settled.All conditions are precedent to that.
But all conditions are precedent, not only in this extreme sense, but also to the existence of the plaintiff's cause of action.As strong a case as can be put is that of a policy of insurance conditioned to be void if not sued upon within one year from a failure to pay as agreed.The condition does not come into play until a loss has occurred, the duty to pay has been neglected, and a cause of action has arisen.Nevertheless, it is precedent to the plaintiff's cause of action.When a man sues, the question is not whether he has had a cause of action in the past, but whether he has one then.He has not one then, unless the year is still running.If it were left for the defendant to set up the lapse of the year, that would be due to the circumstance that the order of pleading does not require a plaintiff to meet all possible defences, and to set out a case unanswerable except by denial.The point at which the law calls on the defendant for an answer varies in different cases.Sometimes it would seem to be governed simply by convenience of proof, requiring the party who has the affirmative to plead and prove it.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. 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, 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.
