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.
The practical difference between the various classes of covenants when considered with reference to their relation to one another consists in the extent to which it is necessary for one of the parties to perform or to tender performance by formal tender, or to offer performance without a formal tender, in order to enforce the covenants on the part of the adversary party against such adversary party.
3 Thorpe v. Thorpe, 12 Mod. 455. 4 See Sec. 2576.
5 Thorpe's Case, March 75.
6 Harriman National Bank v. Sel-domridge, 240 U. S. 1, - L. ed. - .
7 Hill v. Grigsby, 35 Cal. 656; Todd v. State Bank, 182 la. 276, 165 N. W. 593.
8 Loud v. Pomona Land & Water Co., 153 U. S. 564, 38 L. ed. 822.
If one of the covenants is precedent, it is necessary that the party who is bound thereby should perform,1 or should make formal tender of performance,2 in order to enforce the subsequent covenants on the part of the adversary party against such adversary party.3
If the covenant in question is a subsequent covenant, it is not necessary that the party who is bound thereby should perform or should tender performance, or should be ready and willing to perform and call upon the adversary party to perform, in order to enforce the precedent covenant on the part of the adversary party against such adversary party.4
If the covenants are concurrent, formal tender may be made for greater safety, but it is not necessary to enable one of the parties to enforce such covenant against the other; but it is necessary that the party who wishes to enforce such covenant should be ready and willing to perform, and that he should notify the adversary party of such fact in such a way as to call upon him for performance of the covenant on his part to be performed.5
If the covenants in question are independent covenants, it is not necessary that the party who wishes to enforce such covenant should perform or tender performance, or be ready and willing to perform and call upon the adversary party to perform, in order to enforce such independent covenant against such adversary party.6
Accordingly, if one of the parties has performed or has made formal tender of performance, there is no practical difference between a precedent covenant and a concurrent covenant, as to the right of the party who has thus performed or tendered performance, to enforce the covenants on the part of the adversary party against such adversary party.7 As a result, in cases of this sort, the courts are likely to confuse the precedent covenants and the concurrent covenants, since the same practical consequences follow in covenants of each class.
If, on the other hand, the party who seeks to enforce a covenant is not even ready and willing to perform, and has not even offered performance and called upon the adversary party to perform, there is no practical difference between precedent covenants and concurrent covenants on the one hand, since such party can not enforce
1 See chs. LXXX and LXXXI.
2 See eh LXXXIII.
3 See Sec. 2960.
4 See Sec. 2960.
5 See Sec. 2069 and 2970.
6 See Sec. 2976.
7 See Sec. 2951 et seq. and 2961 et seq.
either kind of covenant; and on the other hand there is no difference in effect between subsequent covenants and independent covenants, since such party can enforce each of these classes of covenants in such cases. Accordingly, in cases of this sort, the courts frequently refer to a precedent covenant as an independent cove-nant,8 since the party who seeks to enforce such precedent covenant need not aver even a readiness and willingness to perform and an offer to perform on his part.