Related topics


Condition Precedent

Duty to Co-operate

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.

Conditions, Promissory and Contingency
Last updated: 06-Jul-2015

Mackay v Dick [1881] 6 App Cas 251 per Lord Blackburn at page 263:

The Pursuers were to supply a machine capable of digging and filling into wagons at least 350 cubic yards of clay in a day. It was to be brought to the Defender’s cutting at Carfin, erected, and tested before February 1877. Both agreed that the event of the testing was to be conclusive. If the machine did not answer the test, the Pursuers were to remove it before the end of February; if it did answer the test the Defender was to keep it and pay the agreed price.

I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. What is the part of each must depend on circumstances.

[I]t would follow in point of law that the Defender, having had the machine delivered to him, was by his contract to keep it, unless on a fair test according to the contract it failed to do the stipulated quantity of work, in which case he would be entitled to call on the Pursuers to remove it. And by his own default he can now never be in a position to call upon the Pursuers to take back the machine, on the ground that the test had not been satisfied, he must, as far as regards that, keep, and consequently pay for it.

Total Gas Marketing Ltd v Arco British Ltd & Ors [1997] EWCA Civ 3016 per Gibson LJ:

The latter [promissory conditions] are obligations on one of the parties the failure to perform which leaves the innocent party entitled to treat the contract as terminated. The former [contingency conditions] are states of affairs which, if they do not exist at a designated time, either automatically bring the contract to an end or suspend the obligations thereunder. As has often been observed, it is unfortunate that English law uses the same term "condition" to apply sometimes to a promissory condition, sometimes to a mere term in a contract the breach of which does not entitle the innocent party to terminate the contract and also sometimes to a condition precedent and a condition subsequent. The condition in a condition precedent brings nothing of the import of a promissory condition into the condition precedent, though they have this in common, that they both signify that the parties are treating the condition as a matter of fundamental importance to the agreement.

Leave your comments

Form by