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.
Conditions are classified with reference to their effect on the contract, as conditions precedent and conditions subsequent. A condition precedent, as the name implies, is one which must be performed before the right, to which it is precedent, is acquired.1 At the same time, in making this classification, the courts have not always asked themselves to what right the condition is precedent. The term precedent condition is sometimes used of a condition which is to take place before the contract takes effect at all.2 Even if the during vacancy, but that it revives when the property is occupied again.2 In a policy of fire insurance, a condition against change of location of the insured property without the consent of the insurer may be so worded that the policy is suspended while the property is in such changed location, if the insurer has not consented thereto, but that such policy will revive when the property is moved again to mother location with the consent of the insurer.3
12 See Sec. 2667.
Discharge by subsequent legal impossibility is sometimes made a condition subsequent by the express provisions of the contract. Halloran v. Schmidt Brewing Co., 137 Minn. 141, L. R. A. 1917E, 77r, 162 N. W. 1082.
1 Galt v. Provan, 131 Ia. 277, 108 N. W. 760; Skowhegan Water Co. v. Skow-hegan Village Corp., 102 Me. 323, 66 AtL 714; Board of Education v. Richmond Const. Co., 02 N J. L. 496, 105 Atl. 220; Adams v. Guyandotte Valley Ry. Co., 64 W. Va. 181, 61 S. E. 341.
2 England. Pym v. Campbell, 6 El. & Bl. 370; Wallis v. Littell, 11 C. B. X. S. 369.
162 Fed. 129, 18 L. R. A. (N.S.) 288; Storey v. Storey, 214 Fed. 973.
Arkansas. American Sales Book Co. v. Whitaker, 100 Ark. 360, 37 L. R. A. (N.S.) 91, 140 S. W. 132; Inman v. Quirey, 128 Ark. 605, '194 S. W. 858.
Colorado. Bourke v. Van Keuren, 20 Colo. 05, 36 Pac. 882; Hurlburt v. Dusenbery, 26 Colo. 240, 57 Pac. 860; Divine v. George, - Colo. - ,166 Pac. 242.
Connecticut. McFarland v. Sikes, 54 Conn. 250, 1 Am. St. Rep. III, 7 Atl. 408.
Illinois. Price v. Hudson, 125 III. 284, 17 N. E. 817.
Iowa. Riechart v. Wilhelm, 83 Ia. 510, 50 N. W. 19; McCormick Harvesting Machine Co. v. Morlan, 121 Ia. 451, 96 N. W. 976; Galt v. Provan, 131 Ia, 277, 108 X. W. 760; Garner v. Kratzer, 173 Ia. 292, 155 N. W. 296.
The term "suspensive condition" has been suggested for such conditions. While our legal nomenclature is sadly defective, and while these defects probably appear in contract law more clearly than in any other subject, it seems unfortunate to adopt a term from another system of law in which it has a definite meaning and use it in our system of law with a different meaning. The term "suspensive condition" was used in Roman law of a condition upon which the validity of a juristic act depended.4 It was, therefore, much like our condition precedent,5 and it seems unfortunate to use this term of a peculiar kind of condition subsequent.
Other conditions operate, not to suspend the right of action, but to destroy it entirely;6 and the fact that such state of affairs ceases to exist does not revive the contract and confers no rights upon the parties thereunder.7 If a provision in a policy of fire insurance, that it shall be void in case of vacancy, is construed literally, such policy does not revive when the building becomes occupied.8 The term "solutory condition" or "resolutive condition" has been suggested for conditions of this sort. Here again we have an attempt to take a term from Roman law in which it has a definite meaning, and to use it in Anglo-American law with a different meaning. In Roman law a condition was resolutive when the termination of a juristic act depended upon its happening or not happening.9 The term "resolutive condition" in Roman law was therefore about as broad as the term condition subsequent at our law. While the use of definite terms to indicate definite ideas would be of great help, it would be better to avoid terms which already have definite mean-ings different from those in which it is sought to use them.
Mississippi. Ins. Co. v. Pitts, 88 Miss. 5S7, 7 L. R. A. (N.S.) 627, 41 So. 5.
Missouri. Obermeyer v. Globe Mutual Insurance Co., 43 Mo. 573.
Nebraska. State Insurance Co. v. Sohreck, 27 Neb. 527.
Ohio. Ohio Farmers' Ins. Co. v. Bur-get, 65 O. S. 119, 87 Am. St. Rep. 596, 55 L. R. A. 825, 61 X. E. 712.
Pennsylvania. Mutual Fire Insurance Co. v. Coatesville Shoe Factory, 80 Pa. St. 407.
South Dakota. Edmonds v. Mutual L. Ins. Co., 33 S. D. 55. 50 L. R. A. (N.S.) 592, 144 N. W. 718.
2 Ins. Co. v. Pitts, 88 Miss. 587, 7 L. R. A. (N.S.) 627. 41 So. 5.
3 Ohio Farmers' Ins. Co. v. Burget, 65 O. S. 119, 87 Am. St. Rep. 596, 55 L. R. A. 825, 61 N. E. 712.
4 Czyhlarz, Manual of the Institutes of Roman Law, Sec. 21; Sohm, Institutes of Roman Law, Sec. 43.
5 For a discussion of the relation between the suspensive condition at French law and the condition precedent at common law, see New Orleans v. Texas & Pacific Ry., 171 U. S. 312, 43 L. ed. 178.
6 Canada. Liverpool & London & Globe Ins. Co. v. Agricultural Savings & Loan Co., 33 Can. S. C. 94.
Kansas. German Ins. Co. v. Russell, 65 Kan. 373, 58 L. R. A. 234, 09 Pac. 345.
Maine. Dolliver v. Granite State Fire Ins. Co., III Me. 275, 89 AtL 8.
Maryland. Reynolds v. German-American Ins. Co., 107 Md. 110, 15 L. R. A. (N.S.) 345, 68 Atl. 262.
Nebraska. Home Fire Ins. Co. v. Kuhlman. 58 Neb. 488, 76 Am. St. Rep. 936, 78 N. W. 936 (obiter, as condition was waived).