Res. 84 (promise in event of non-occurrence of condition) Forum

[arvcondor]

This one's bugging me.

Here's 84(1):

"(1)Except as stated in Subsection (2), a promise to perform all or part of a
conditional duty under an antecedent contract in spite of the non-occurrence of the
condition is binding, whether the promise is made before or after the time for the
condition to occur, unless

(a) occurrence of the condition was a material part of the agreed exchange
for the performance of the duty and the promisee was under no duty that it
occur; or

(b) uncertainty of the occurrence of the condition was an element of the risk
assumed by the promisor."

Like so many moments in contract law, the drafters are terrible with language. My interpretation of it is this: If I expressly waive a condition, that waiver is binding unless the condition is material and it is not a promsissory condition, and unless (b) as well (I don't feel like putting (b) into my own words).

My friend's interpretation is that this is not a section on waivers per se, but just a statement that non-material conditions don't matter and that a waiver is already implied if a condition is non-material. In other words, the waiver doesn't have to be express; instead, the waiver exists the moment that non-material condition is made.

Who is right?

[AreJay711]

Studying for contracts too. 1) I don't think it really matters who is right since the outcome is what you want to discuss on the exam 2) I think you friend is right.

You can't make a contract that is unenforceable because of non-mutuality enforceable by waiving the condition. Basically, I think this is saying is that you can't draft a contract so that there is some stupid external condition that might make it unenforceable. It needs to be something material to the K or some element of the risk sharing. We never discussed this in class though so that is just my take.

[x7227]

This one's bugging me.

Here's 84(1):

"(1)Except as stated in Subsection (2), a promise to perform all or part of a
conditional duty under an antecedent contract in spite of the non-occurrence of the
condition is binding, whether the promise is made before or after the time for the
condition to occur, unless

(a) occurrence of the condition was a material part of the agreed exchange
for the performance of the duty and the promisee was under no duty that it
occur; or

(b) uncertainty of the occurrence of the condition was an element of the risk
assumed by the promisor."

Like so many moments in contract law, the drafters are terrible with language. My interpretation of it is this: If I expressly waive a condition, that waiver is binding unless the condition is material and it is not a promsissory condition, and unless (b) as well (I don't feel like putting (b) into my own words).

My friend's interpretation is that this is not a section on waivers per se, but just a statement that non-material conditions don't matter and that a waiver is already implied if a condition is non-material. In other words, the waiver doesn't have to be express; instead, the waiver exists the moment that non-material condition is made.

Who is right?

You're both sorta right and sorta wrong. Basically this section says if you're gonna expressly waive a non-material condition of a previous agreement (and your waiver can be through promise or performance) you can't go back later and say, 'oh I know what I told you, but our previous agreement says you have to do [CONDITION] and you didn't (even though I told you that you didn't have to) so... STFU and GTFO!'

If the condition was material to the original agreement you can't waive it, but if it was non-material you can waive it (and you're not allowed to go back on your waiver).

For example: Our agreement says you have to notify me of any changes immediately via certified mail and carrier pigeon. You immediately notify me by certified mail but can't find a carrier pigeon, call me up and tell me, and I say 'nah its all good bro, carrier pigeon not required.' I can't later come back and claim you screwed up by not sending the carrier pigeon, assuming (of course) that the carrier pigeon notification was not a material term of our agreement.