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Conditions, Promissory and Contingency

Law and Sea.
Contractual Terms

Contractual terms are distinguished from mere representations, not intended to be promises. In other words, no liability can arise if statement was made without any intention to form any kind of contractual relationship.

Condition Precedent
Last updated: 19-May-2015

Boone v Eyre (1779), 1 Hy Bl 273 n, per Lord Mansfield:

The distinction is very clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent.

Per Lord Ellenborough CJ in Ritchie v Atkinson (1808) 10 East 295, at p 389:

the question is, whether it be a condition precedent? and that depends not on any formal arrangement of the words, but on the reason and sense of the thing, as it is to be collected from the whole contract: whether of two things reciprocally stipulated to be done, the performance of the one does in sense and reason depend upon the performance of the other.

Another statement of Lord Ellenborough CJ in Davidson v Gwynne (1810), 12 East, at p 389:

The principle laid down in Boone v Eyre has been recognised in all the subsequent cases, that unless the non-performance alleged in breach of the contract goes to the whole root and consideration of it, the covenant broken is not to be considered as a condition precedent, but as a distinct covenant, for the breach of which the party injured may be compensated in damages.

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