Creation, Timing of Operation, and Mechanics Contract Conditions Creation, Timing of Operation, and Mechanics Creation: express (written or oral) or constructive: a) implied in fact (circumstances) or implied in law (policy). Timing: precedent (must occur first before other’s duty arises); subsequent (failure of condition cuts off another’s already-existing duty; concurrent (same-time exchanges – most common). Mechanics: precedent and concurrent conditions forestall the onset of a duty until the condition is met whereas subsequent cuts off a duty that already arose and could be currently operating. Examples: Precedent: “If I get that new job, I will buy your car $5,000.” Subsequent: “If you don’t fix roof as promised, I will stop paying rent.” Concurrent: “I will hand you $4 if you make and hand me a latte.” Compare these to promises, which can suspend a duty (not cut it off) or permit damages to the non-breaching party, which is something quite a bit less than forfeiture. Common tricky or testable ones include personal satisfaction (objective or subjective?) conditions, “time is of the essence.” It may be helpful to use the term “failure,” i.e., the failure of a condition, to distinguish it from breach of a contractual obligation. A major issue involves conditions and interpretation. Because failure of condition ends a duty, it can lead to forfeiture. Courts can ‘interpret’ a condition as a promise, to apply the “substantial performance” doctrine, and thereby avoid forfeiture. A good way to remember is to ask, if there is a choice that it is one or the other, which is better for you? Better it be a promise so you get paid despite some damages for breach? Or lose all for failing to meet a condition? © 2018 Paul J. Carrier, Paul J Carrier, LLC Blue – Category Recognition; White – Specific Category; Yellow – “Black Letter” Rules (to be memorized); Green – Main Factual Issues – Analysis; Red – Upper-Level, Integrated Comprehension