Sec 550

A condition being a limitation upon a contingency, there are two ways in which it may operate; first, when the contract does not go into effect until the contingency, which is called a suspensive condition; and secondly, when its effect is terminated by the contingency, which is called a resolutive or destructive contingency. Of suspensive conditions, Savigny enumerates three phases: The first is the state of indecision which arises from the nature of the condition (pendat conditio). Here a right does not yet exist, and its future existence is made more or less dependent on the will of the parties in interest. This condition can be modified in two ways: (1) The contingency may actually occur; - the condition, in future may be regarded as conditional.

In Roman law, conditions are suspensive or resolutive.

1 Leake, 2d ed. 634; see Holmes v. Richet, 56 Cal. 307.

2 Infra, sec 882 et seq.

3 Ibid.

4 Mussen v. Price, 4 East, 147; Dutton v. Solomonson, 3 B. & P. 582; Helps v. Winterbottom, 2 B. & Ad.

431; see Stockton Iron Co. in re, L. R. 2 C. D. 101; Hanna v. Mills, 21 Wend. 90; Rinehart v. Olwine, 5 Watts & S.. 157; infra, sec 881 et seq., 953 et seq.

5 Infra, sec 956.

6 Infra, sec 957.

other words, is fulfilled, impleta or expleta conditio, by which the contract becomes unconditionally obligatory.1 The second is the converse, when the contingency does not occur, deficit conditio, in which case the expectation of the obligatory force of the contract is finally abandoned.

Sec 551

In our own law, the same distinction is recognized though with a different nomenclature. Conditions suspensive are called by us conditions precedent, while conditions resolutive are substantially the same as our conditions subsequent. A condition precedent must be satisfied before the promise it qualifies becomes effectual; e. g., I promise to send goods to A. if A. first sends a cheque for them, in which case my promise does not bind me until A. sends me the cheque. A condition subsequent does not preclude the promise from being at once obligatory, but provides for its rescission upon the happening of a future contingent event.2 But the distinction between a condition precedent and a condition subsequent is rather formal than real. There is no condition precedent that is not in one sense a condition subsequent; i. e., there is no condition precedent that does not interpose to prevent the performance of a contract by which the parties are already bound. And there is no condition subsequent that is not a condition precedent, - i. e., there is no condition subsequent that is not precedent to the as yet unperformed subject matter of the contract. There are no conditions, also, which are not both conditions precedent and conditions subsequent. The payment of an insurance premium, for instance, is at once a condition precedent, and condition subsequent to the insurance.3 - On a bond with a penalty, the condition is in form a condition subsequent, as it. attests a general indebtedness to be released when a specific thing is done; yet in substance it is a condition precedent, since something must take place before suit can be brought.4 So in the cases hereafter men-

In our law, conditions are divided as precedent and subsequent tioned, it is a condition precedent to the validity of indentures of apprentice, that the master should be able to instruct the apprentice, while failure to instruct arising from incapacity is a condition subsequent which vacates the indenture.1 The same may be said of all contracts to be performed on the happening of a certain event. The contract binds from the time it is made, and ceases to bind on the non-occurrence of a certain event, which is, therefore, in this sense, a condition subsequent. Yet performance does not take place until the occurring of the event, which is, therefore, a condition precedent.2 The same remark is made by Windscheid, in reference to the distinction as now recognized in the Roman law.3 sec 552. It may be that a party agrees to do a series of things conditioned upon certain things being done by the other party. It depends upon the terms of the contract whether the conditions are divisible. As a rule, it may be said that where each of the things to be done by the one party is conditioned upon a specified act by the other party, then the performance of each thing may be separately compelled.4 Thus, where a land-owner agrees to let land for building purposes, and on this land a builder is to put a series of houses, and to receive leases on the houses when built on separate ground rents, the builder, it has been held, is entitled to receive, a lease on each house when completed, without being compelled, as a condition precedent, to finish the other houses.5 - The question is, whether the subject of the condition is so divisible that its component parts may be apportioned, at least so far as concerns one or more members, to the corresponding part of the promise. If this cannot be done, all the alternative parts of the condition are to be performed before the promisee can recover. Thus, if A. promises to do two distinct things on the happening of two distinct events, he is not compellable to do either until both events happen.6

1 Savigny, op. cit. 250, citing L. 26 de cond. inst. (28, 7).

2 See Clement v. Clement, 8 N. H. 210; Goodwin v. Holbrook, 4 Wend. 377.

3 People v. Ins. Co., 78 N. Y. 114; Wheeler v. Ins. Co., 82 N. Y. 545. 4 See Gray v. Gardner, 17 Mass. 188.

Conditions precedent may be divisible.

1 See infra, sec 613.

2 See Wilson v. Ins. Co., 27 Vt. 99; Amesbury v. Ins. Co., 6 Gray, 596.

3 Windscheid, Pandekt. sec 86.

4 See infra, sec 607; Lang. Cont. ii. 1007; Neale v. Ratcliff, 15 Q. B. 916.

As to divisible considerations, see supra, sec 511; as to divisible promises, see supra, sec 338.

5 Wilkinson v. Clements, L. R. 8 Ch. 96.

6 Neale v. Ratcliff, 15 Q. B. 916.

On the other hand, he may bind himself to do a particular thing on the occurrence of one out of several events.1 It should be remembered that entirety depends upon the intention of the parties, and not upon the divisibility of the price or the thing to be delivered. Price or thing to be delivered may be divisible; and yet, if intended by the parties, the contract may be entire.2 But the fact that purchase money is payable at distinct intervals, leads to the inference of divisibility;3 and so does the fact that each article in a sale has a distinct price.4