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.
If a condition is impossible, its effect upon the contract depends upon whether it is precedent or subsequent. If it is precedent, the contract can not, by its terms, take effect, in whole or in part, until such condition is performed; and, accordingly, if the condition is impossible, the contract or the covenant subject to such condition never takes effect.1 It has also been said that the condition may be ignored, if impossible, meaningless, or absurd.2 This statement has, however, been made in obiter,3 or in cases in which performance on the part of the adversary party had taken place so far that forfeiture of his rights would have resulted if the impossibility of performing the condition were to operate as a discharge.4 If a contract for the compromise of a disputed claim provides for depositing a certain sum of money which is to be repaid if the party who makes such deposit shall make good and sufficient proof before a tribunal having competent jurisdiction, that he made a certain payment at a prior time, and if he shall also make such proof to the satisfaction of the administrators of his deceased creditor, the condition as to making proof is impossible, since no tribunal has jurisdiction to hear evidence or to make a finding if no case is pending before it; and such condition as to the manner of performance must therefore be rejected, but the rest of the contract will be enforced.1
12 Lakka v. Modern Brotherhood, 163 Ia. 159, 49 L. R. A. (N.S.) 902, 143 N. W. 513; Smith v. Prudential Ins. Co., 83 N. J. L. 719, 43 L. R. A. (N.S.) 431, 85 Atl. 190.
13 Fidelity & C. Co. v. Meyer, 106 Ark. 91, 44 L. R. A. (N.S.) 493, 152 S. W. 995; Spence v. Central Acci. Ins. Co., 236 III. 444, 19 L. R. A. (N.S.) 88, 86 N. E. 104; Cady v. Fidelity & C. Co., 134 Wis. 322, 17 L. R. A. (N.S.) 260, 113 N. W. 967; French v. Fidelity & C. Co., 135 Wis. 259, 17 L. R. A. (N.S.) 1011, 115 N. W. 869.
14 Fidelity & Deposit Co. v. Kane, 182 Ky. 64S, 206 S. W. 888.
15 National Council v. Glenn, - Fla. - , 2 A. L. R. 1503, 80 So. 516.
16 Tebeau v. Globe & Rutgers Fire Ins. Co., 271 Mo. 626, 2 A. L. R. 1041, 197 S. W. 130.
1 Lord v. Tyler, 31 Mass. (14 Pick.) 156 (obiter, as condition was construed so as to avoid impossibility, which in this case was requiring co-owner to establish his interest in the chattel by action at law against his co-owner).
See, however, Worsloy v. Wood. 6 T. R. 710 (refusal of minister and churchwardens, not parties to contract, to sign certificate, which was made condition precedent to bringing action on policy - probably refusal was justifiable; not true impossibility).
2 Stockton v. Turner, 30 Ky. (7 J. J. Mar.) 192; Morrill v. Bell, 14 Miss. (6 Sm. & M.) 730.
"The general rule is that conditions which are impossible or insensible are void, and the obligation remains absolute, if it be not for the doing of an illegal thing. Sbeppard's Touchstone, title Obligation, 372, 373. But if any sense or certainty can be made of it, the obligation and condition shall both stand." Merrill v. Bell, 14 Miss. (6 Sm. & M.) 730.
"A nonsensical or repugnant condition will not affect an obligation, even though the entire condition be incongnious or uncertain - a fortiori, an uncertain or repugnant stipulation, or expression in a condition, consistent and certain in other respects, can not change or materially affect the import and effect of the contract. Thus, if the condition of a bond be that if the obligor do not pay, the bond shall be void, the obligation will be understood to be single, or as if there bad been no condition - 'for when the condition recites a debt, and after lays an obligation not to pay It, it is in that repugnant and void.' Bacon's Abridgment, Cond. L. & Cooke v. Graham's Administrators, 7 U. S. (3 Cranch) 220, 2 L. ed. 420." Stockton v. Turner, 30 Ky. (7 J. J. Mar.) 102.
If the condition is subsequent on the other hand, the contract has already taken effect, and by its terms its effect is to end only on the performance of the condition. If the condition, therefore, is impossible, the contract is unconditional in legal effect.6 The principle that an impossible or nonsensical provision will be rejected has been applied to cases of bonds which contained the condition that the debtor should make the payment to himself,7 or that the creditor should make the payment.8 These are really illustrations of the application of the general principle that the intent of the parties as manifest from the entire instrument will prevail over grammatical errors and mistakes in expression which can be corrected from the instrument itself.9 If the condition is possible when the contract is made, but it becomes impossible thereafter by operation of law, such subsequent impossibility may operate as a discharge of the entire contract,10 as in case of covenants which subsequently become impossible by act of the law.11 If a bond is conditioned upon the payment of the debt by the judgment debtor, or upon his rendering his body in execution, and arrest and imprisonment for debt, is subsequently forbidden by law, the sureties upon such bond are thereby discharged.12
3 It has been said that if a condition precedent to payment for value is impossible, such condition may be ignored at law as well as in equity. In this ease, however, the event, namely, such stage of water in the river as would permit the boat to go on a certain voyage, on the return from which the price for the boat was to become due, was not impossible. Peery v. Cooper, 8 Mo. 205.
4 Merrill v. Bell, 14 Miss. (6 Sm. & M.) 730.
5 Merrill v. Bell, 14 Miss. (6 Sm. & M.) 730.
6 Stockton v. Turner, 30 Ky. (7 J. J. Mar.) 102.
It is said that "the condition • • • never really existed." Racine County Bank v. Ayers, 12 Wis. 512 [citing, Hughes v. Edwards, 22 U. S.(9 Wheat.) 403, 0 L. ed. 143, and Merrill v. Bell, 10 Miss. (2 Sm. & M.) 730].
7 Stockton v. Turner, 30 Ky. (7 J. J. Mar.) 102.
8 Cooke v. Graham's Administrator, 7 U. S. (3 Cranch) 229, 2 L. ed. 420
Similar considerations apply to an illegal condition. If the illegal condition is a condition precedent, and the contract is entire, the effect of such condition, like that of an illegal covenant in an entire contract,13 is to defeat the. entire contract. If the illegal condition is a condition subsequent, the contract has already taken effect; and since the law does not tolerate the performance of the condition, the contract is in legal effect unconditional.14 If the con-tract is intended to produce results which the law condemns as illegal, and if such contract is entire, the whole contract is illegal, whether the illegal provision is inserted by way of a covenant or by way of a condition.15
If the condition is void as distinct from illegal,16 it is treated as of no legal effect, in analogy to the rules which apply to void covenants;17 and if the remaining provisions of the contract are sufficient to make a valid contract after rejecting the void condition, full effect will be given thereto.18
The fact that there is comparatively little authority upon the impossible, absurd and illegal conditions, while there is such an amount of authority upon the uncertain19 or illegal and void" covenants, is no doubt due to the fact that provisions of this sort are usually intended by the parties as a part of the subject-matter or the consideration; and accordingly they must be considered in such connections. Events of this sort are rarely pure conditions which are not part of the subject-matter or of the consideration.
9 See Sec. 2031 et seq.
10 Brown v. Dillahunty, 12 Miss. (4 8m. & M.) 713, 43 Am. Dec. 400.
11 See ch. LXXVIII.
12 Brown v. Dillahunty, 12 Miss. (4 Sm. & M.) 713, 43 Am. Dec. 400.
13 See Sec. 1031.
14 Brewer v. Marshall, 10 N. J. Eq. 537, 07 Am. Dec. 670. 15 See Sec. 862 et seq. and 1020 et seq. 16 See Sec. 1020 et seq.
17 See Sec. 1035 et seq.
18 For similar provisions for arbitration of entire subject-matter, see Sec. 721.
For the effect of conditions reducing the period of limitations, see Sec. 732 et seq.
For the validity of contracts requiring notice, see Sec. 735 and 2609 et seq.
19 See Sec. 05 et seq.
20 See Sec. 657 et seq.