84 Promise to Perform a Duty in Spite of Non-Occurrence Of a Condition see also Formation
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
- 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
- uncertainty of the occurrence of the condition was an element of the risk assumed by the promisor.
2. If such a promise is made before the time for the occurrence of the condition has expired and the condition is within the control of the promisee or a beneficiary, the promisor can make his duty again subject to the condition by notifying the promisee or beneficiary of his intention to do so if
- the notification is received while there is still a reasonable time to cause the condition to occur under the antecedent terms or an extension given by the promisor; and
- reinstatement of the requirement of the condition is not unjust because of a material change of position by the promisee or beneficiary; and
- the promise is not binding apart from the rule stated in Subsection (1).
224 Condition Defined
A condition is an event, not certain to occur, which must occur, unless its non- occurrence is excused, before performance under a contract becomes due.
225 Effects of the Non-Occurrence Of a Condition
1. Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused.
2. Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur.
3. Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur.
226 How an Event May Be Made a Condition
An event may be made a condition either by the agreement of the parties or by a term supplied by the court.
227 Standards of Preference with Regard to Conditions
1. In resolving doubts as to whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk.
2. Unless the contract is of a type under which only one party generally undertakes duties, when it is doubtful whether
- a duty is imposed on an obligee that an event occur, or
- the event is made a condition of the obligor's duty, or
- the event is made a condition of the obligor's duty and a duty is imposed on the obligee that the event occur, the first interpretation is preferred if the event is within the obligee's control.
3. In case of doubt, an interpretation under which an event is a condition of an obligor's duty is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it has become a duty to perform.
228 Satisfaction of the Obligor as a Condition
When it is a condition of an obligor's duty that he be satisfied with respect to the obligee's performance or with respect to something else, and it is practicable to determine whether a reasonable person in the position of the obligor would be satisfied, an interpretation is preferred under which the condition occurs if such a reasonable person in the position of the obligor would be satisfied.
229 Excuse of a Condition to Avoid Forfeiture
To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.
230 Event That Terminates a Duty
1. Except as stated in Subsection (2), if under the terms of the contract the occurrence of an event is to terminate an obligor's duty of immediate performance or one to pay damages for breach, that duty is discharged if the event occurs.
2. The obligor's duty is not discharged if occurrence of the event
- is the result of a breach by the obligor of his duty of good faith and fair dealing, or
- could not have been prevented because of impracticability and continuance of the duty does not subject the obligor to a materially increased burden.
3. The obligor's duty is not discharged if, before the event occurs, the obligor promises to perform the duty even if the event occurs and does not revoke his promise before the obligee materially changes his position in reliance on it.
239 Effect on Other Party's Duties of a Failure Justified by Non-Occurrence Of a Condition see also Mandatory Obligations
1. A party's failure to render or to offer performance may, except as stated in Subsection (2), affect the other party's duties under the rules stated in §§ 237 and 238 even though failure is justified by the non-occurrence of a condition.
2. The rule stated in Subsection (1) does not apply if the other party assumed the risk that he would have to perform in spite of such a failure.
245 Effect of a Breach by Non-Performance As Excusing the Non-Occurrence Of a Condition see also Mandatory Obligations5
Where a party's breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.
246 Effect of Acceptance as Excusing the Non-Occurrence Of a Condition
1. Except as stated in Subsection (2), an obligor's acceptance or his retention for an unreasonable time of the obligee's performance, with knowledge of or reason to know of the non-occurrence of a condition of the obligor's duty, operates as a promise to perform in spite of that non-occurrence, under the rules stated in § 84.
2. If at the time of its acceptance or retention the obligee's performance involves such attachment to the obligor's property that removal would cause material loss, the obligor's acceptance or retention of that performance operates as a promise to perform in spite of the non-occurrence of the condition, under the rules stated in § 84, only if the obligor with knowledge of or reason to know of the defects manifests assent to the performance.
247 Effect of Acceptance of Part Performance as Excusing the Subsequent Non-Occurrence Of a Condition
An obligor's acceptance of part of the obligee's performance, with knowledge or reason to know of the non-occurrence of a condition of the obligor's duty, operates as a promise to perform in spite of a subsequent non-occurrence of the condition under the rules stated in § 84 to the extent that it justifies the obligee in believing that subsequent performances will be accepted in spite of that non-occurrence.
248 Effect of Insufficient Reason for Rejection as Excusing the Non-Occurrence Of a Condition
Where a party rejecting a defective performance or offer of performance gives an insufficient reason for rejection, the non-occurrence of a condition of his duty is excused only if he knew or had reason to know of that non-occurrence and then only to the extent that the giving of an insufficient reason substantially contributes to a failure by the other party to cure.
255 Effect of a Repudiation as Excusing the Non-Occurrence Of a Condition see also Remedies
Where a party's repudiation contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.