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 which they stood before the contract was made.When a condition operates as such, it lets in an outside force to destroy the existing state of things.For although its existence is due to consent of parties, its operation depends on the choice of one of them.When a condition is broken, the person entitled to insist on it may do so if he chooses; but he may, if he prefers, elect to keep the contract on foot.He gets his right to avoid it from the agreement, but the avoidance comes from him.
Hence it is important to distinguish those stipulations which have this extreme effect from those which only interpret the extent of a promise, or define the events to which it applies.
And as it has just been shown that a condition need not be insisted on as such, we must further distinguish between its operation by way of avoidance, which is peculiar to it, and its incidental working by way of interpretation and definition, in common with other clauses not conditions.
This is best illustrated by taking a bilateral contract between Aand B, where A's undertaking is conditional on B's doing what he promises to do, and where, after A has got a certain distance in his task, B breaks his half of the bargain.For instance, A is employed as a clerk by B, and is wrongfully dismissed in the middle of a quarter.In favor of A, the contract is conditional on B's keeping his agreement to employ him.Whether A insists on the condition or not, he is not bound to do any more. So far, the condition works simply by way of definition.It establishes that A has not promised to act in the case which has happened.
But besides this, for which a condition was not necessary, A may take his choice between two courses.In the first place, he may elect to avoid the contract.In that case the parties stand as if no contract had been made, and A, having done work for Bwhich was understood not to be gratuitous, and for which no rate of compensation has been fixed, can recover what the jury think his services were reasonably worth.The contract no longer determines the quid pro quo.But as an alternative course A may stand by the contract if he prefers to do so, and sue B for breaking it.In that case he can recover as part of his damages pay at the contract rate for what he had done, as well as compensation for his loss of opportunity to finish it.But the points which are material for the present discussion are, that these two remedies are mutually exclusive, one supposing the contract to be relied on, the other that it is set aside, but that A's stopping work and doing no more after B's breach is equally consistent with either choice, and has in fact nothing to do with the matter.
One word should be added to avoid misapprehension.When it is said that A has done all that he promised to do in the case which has happened, it is not meant that he is necessarily entitled to the same compensation as if he had done the larger amount of work.B's promise in the case supposed was to pay so much a quarter for services; and although the consideration of the promise was the promise by A to perform them, the scope of it was limited to the case of their being performed in fact.Hence Acould not simply wait till the end of his term, and then recover the full amount which he would have had if the employment had continued.Nor is he any more entitled to do so from the fact that it was B's fault that the services were not rendered.
B's answer to any such claim is perfect.He is only liable upon a promise, and he in his turn only promised to pay in a case which has not happened.He did promise to employ, however, and for not doing that he is liable in damages.
One or two more illustrations will be useful.A promises to deliver, and B promises to accept and pay for, certain goods at a certain time and place.When the time comes, neither party is on hand.Neither would be liable to an action, and, according to what has been said, each has done all that he promised to do in the event which has happened, to wit, nothing.It might be objected that, if A has done all that he is bound to do, he ought to be able to sue B, since performance or readiness to perform was all that was necessary to give him that right, and conversely the same might be said of B.On the other hand, considering either B or A as defendant, the same facts would be a complete defence.The puzzle is largely one of words.
A and B have, it is true, each performed all that they promised to do at the present stage, because they each only promised to act in the event of the other being ready and willing to act at the same time.But the readiness and willingness, although not necessary to the performance of either promise, and therefore not a duty, was necessary in order to present a case to which the promise of action on the other side would apply.Hence, although A and B have each performed their own promise, they have not performed the condition to their right of demanding more from the other side.The performance of that condition is purely optional until one side has brought it within the scope of the other's undertaking by performing it himself.But it is performance in the latter sense, that is, the satisfying of all conditions, as well as the keeping of his own promises, which is necessary to give A or B a right of action.
