In England the parties apparently may make all rights under a contract conditional on arbitration, by using language appropriate for the purpose.56 The principle has thus been stated: "If there is a covenant to pay the amount of the loss, accompanied by a collateral provision that the amount shall be ascertained by arbitration, such arbitration is not a condition precedent to the maintenance of an action on the covenant; but if the parties have covenanted that the liability is only to arise after the amount has been adjusted by arbitration, then such adjustment is a condition precedent to the right to recover." 57 But when there is a repudiation going to the substance of the whole contract it has been held the repudiating party when sued and seeking to justify the repudiation cannot insist on the enforcement of a subordinate term of the contract making arbitration a condition precedent to liability.58 ship Co., 99 Fed. 787, 102 Fed. 926, 43 C. C. A. 57.

56 The leading case is Scott v. Avery, 5 H. L. C. 811.

57 Viney v. Bignold, 20 Q. B. D. 172. See also Elliott v. Royal Ex. Ass., L. R. 2 Exch. 237; Dawson v. Fitzgerald, 1 E.x. D. 257; Collins v. Locke, 4 A. C. 674; Babbage v. Coulburn, 9 Q. B. D. 235; Caledonian Ins. Co. v. Gilmour, [1893] A. C. 85; Trainor v. Phoenix Fire Ins. Co., 65 L. T. 825; Manchester Ship Canal Co. v. Pearson, [1900] 2 Q. B. 606; Spurrier v. LaCloche, [1902] A. C. 446; Woodall v. Pearl Assurance Co., [1919] 1 K. B. 593. C/. Edwards v. Aberayron Ins. Soc, 1 Q. B. D. 563.

58 In Jureidini v. National British, etc., Ins. Co., [1915] A. C. 499, an action was brought on a policy of fire insurance "which provided (1) that if the claim were fraudulent or if the loss were occasioned by the wilful act or with the connivance of the insured all benefit under the policy should be forfeited, and (2) that if any difference arose as to the amount of any loss such difference should, independently of all other questions, be referred to arbitration, and that it should be a condition precedent to any right of action upon the policy that the award of the arbitrator or umpire of the amount of the loss if disputed should be first obtained. The insurance company repudiated the claim in toto on the ground of fraud and arson." It was held "that the repudiation of the claim on a ground going to the root of the contract precluded the company from pleading the arbitration clause as a bar to an action to enforce the claim."

The distinction so taken, however, is unsound. A person who repudiates a contract wrongfully can not sue upon it himself, but if he is sued upon it he can be held liable only according to the terms of the contract. If, therefore, an arbitration clause amounts to a condition precedent to the defendant's promise to pay any insurance money, and such conditions are lawful, the defendant can be held liable only if that condition is performed, prevented, or waived.59