III. Relation Of Covenants To One Another. A. General Principles. Sec. 2941. Relation Of Covenants To One Another - Classification
Description
This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
III. Relation Of Covenants To One Another. A. General Principles. Sec. 2941. Relation Of Covenants To One Another - Classification
Whether breach discharges the adversary party from further performance, depends upon the relation, or want of relation, between the covenants entered into and broken by the party who breaks the contract, and the covenants entered into by the adversary party, for the discharge of which such breach is invoked.1 Stipulations or covenants entered into by the respective parties to the contract may be: (1) independent of each other;2 or (2) mutually dependent, one upon the other.3 The question of whether covenants are dependent or independent, is a question of the intention of the parties as deduced from the terms of .the contract.4 If the parties intend that performance by each of them is in no way conditioned upon performance by the other, the covenants are independent.5
10 Bloomer v. Bernstein, L. R. 9 C. P.
688.
11 See 5 3011.
12 Hanson v. Fox, 155 Cal. 106, 20 L. R. A. (N.S.) 338, 99 Pac. 489; Trask v. Vinson, 37 Mass. (20 Flck.) 105.
13 Trask v. Vinson, 37 Mass. (20 Pick.) 105.
14 Hanson v. Fox, 155 Cal. 106, 20 L. R. A. (N.S.) 338, 99 Pac. 489.
1 See Sec. 2951 et seq.
See also, Dependency of Mutual Promises in the Civil Law, by Samuel Williston, 13 Harvard Law Review, 80.
2 See Sec. 2971 et seq.
3 Quinlan v. Green County, 157 Fed. 33, 19 L. R. A. (N.S.) 849 [affirmed, Green County v. Quinlan, 211 U. S. 582, 53 L. ed. 335].
See Sec. 2951 et seq.
4 See Sec. 2948.
5 See Sec. 2971 et seq.
If the parties intend performance by one to be conditioned upon performance by the other, the covenants are mutually dependent.6 Covenants which are mutually dependent may bear to each other one of two relations: (1) they may be the one precedent and the other subsequem;7 or (2) they may be concurrent.8 If the parties intend that a covenant by A is to be performed before a covenant by B is to be performed, A's covenant is precedent, and B's is subsequent; the two being mutually dependent.9 If the parties intend that A is to perform the covenant on his part at the same time that B is to perform the covenant on his part, A's covenant and B's covenant are said to be concurrent.10
Continue to:
My Books
