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.
While the courts generally employ the names "independent,' "precedent" and "concurrent" covenants, especially in recent cases, the use of these terms is by no means uniform, and, especially in the earlier cases, the same ideas have been expressed by very different terms. A covenant which is now called "independent" was at one time called "mutual,"1 or "absolute" and "reciprocal."2 In many cases the failure to perform a precedent covenant and the failure to perform a concurrent cove-nant have the same effect as discharging the adversary party from duty to perform on his part; and occasionally a covenant which is properly classed as a concurrent covenant is spoken of as a precedent covenant where the breach of such covenant operates as a discharge of the adversary party from his duty to perform the covenants on his part.3 The fact that the breach of a condition frequently has the same consequences as the breach of a covenant,4 has occasionally led to the term "absolute" as applied to independent covenants, and to the term "conditional" as applied to dependent covenants.5 Failure to perform a covenant, the breach of which operates as a discharge, is still said to be ground for cancellation.6 At modern law the use of the term "mutual" is regarded as showing that the covenants are dependent, and ordinarily concurrent.7 If a covenant is concurrent it is felt to be sufficient to call it "dependent"8
6 World's Fair Mining Co. v. Powers, 224 U. S. 173, 56 L. ed. 717; States ville Flour Mills Co. v. Wayne Distributing Co., 171 N. Car. 708, 88 S. E. 771 (obiter).
See Sec. 2051 et seq.
7 World's Fair Mining Co. v. Powers, 224 U. S. 173, 50 L. ed. 717; Hughes v. Crooker, 148 N. Car. 318, 125 Am. St. Rep. 606, 62 S. E. 420; funshino Cloak & Suit Co. v. Roquette, 30 N. D. 143, L. R. A. 1916E, 932, 152 N. W. 350.
See Sec. 2051 et seq.
8 See Sec. 2961 et seq. 9 See Sec. 2051 et seq.
"Where the undertaking on one side is in terms a condition to the stipulation on the other, that is, where the contract provides for the performance of some act, or the happening of some event, and the obligations of the contract are made to depend on such performance or happening, the conditions are conditions precedent. The reason and sense of the contemplated transaction, as it must have been understood by the parties and is to be collected from the whole contract, determine whether this is so or not; or it may be determined from the nature of the acts to be done and the order in which they must necessarily precede and follow each other in the progress of performance.' New Orleans v. Texas & Pacific Ry., 171 U. S. 312, 43 L. ed. 178
10 See Sec. 2951 et seq.
1 Ware v. Chappell, Style 186; Beany v. Turner, 1 Lev. 203; Thorpe's Case, March 75.
For a similar use of "mutual" see, Kinney v. Federal Laundry Co., 75 N. J. L. 407, 68 AtL 111/
2 Gibbons v. Prewd, Hardres 102. "The performance on the defendant's part is not sub modo, or conditional, but absolute and reciprocal by reason of the agreement; for it la not in consideration that the plaintiff should convey all her estate, etc., but in consideration that the plaintiff did agree to it; and the consideration upon which the action is grounded is a mutual promise to perform the agreement. 5 H. 7, 10b As if I covenant to marry a man's daughter, and he covenants to give me a hundred pounds, so here the agreement and promise, which is reciprocal, and gives the defendant a remedy upon breach made by the plaintiff, is the consideration and not the performance of any act by the plaintiff. * * * the defendant's agreement does not depend upon the plaintiff's performing of any act, but is, that in consideration that the plaintiff agreed to do such a thing, the defendant agreed to do another thing, and the consideration is no other than the reciprocal promise of one to the other, which is executory, and upon which the parties have mutual remedies ; and it is a general rule that when the defendant has a remedy for the consideration of a promise, that consideration needs not be averred to be performed, which is our case." Gibbons v. Prewd, Hardres 102.