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CONDITIONS STEP BY STEP

Condition Note: Interpretation/construction rules apply. 1) Determine NATURE OF TERM


a) Promise: An undertaking to act or refrain from acting in a specified way at some future time. b) Condition: An event that is not certain to occur. c) Promissory Condition: An event that is not certain to occur, but one party has promised will occur.

2) Determine TYPE OF CONDITION


a) Express: Language in K directly creates condition. i.e. On condition that, Provided that, or some other very obvious means of conveying that the K is conditional somehow. b) Implied in Fact: No language present, but contextual evidence supports understanding that condition was meant by the parties. c) Constructive: No language/context supports condition, but implied at law if the circumstances and nature of the K compel the conclusion that the condition should exist as a matter of policy, or that if the parties had addressed the issue, they reasonably would have intended it to be part of their K.

3) Determine SEQUENCE OF CONDITION (no specified order = interpretation/construction)


a) Precedent: Conditions fulfillment must precede the performance contingent upon it. i.e. Zoning board outcome either creates Buyers duty to perform or duty does not arise. b) Concurrent: Conditions fulfilled at the same time. i.e. Buyer paying and Seller conveying title. c) Subsequent: Condition occurs after performance. i.e. Zoning board outcome after K is signed either keeps Buyers duty to perform in effect or discharges the duty that arose at the K.

4) Determine CONDITIONS EFFECT ON K


a) Strict Compliance: Apply express/implied in fact condition terms strictly, even if result is harsh. b) Substantive Compliance: Apply construed condition terms reasonably.