Jordan English, ‘The nature of “promissory conditions”’

English lawyers are commonly told that in contract law a ‘condition’, in its promissory sense, is a term the breach of which gives the innocent party a ‘power to terminate’. Exercising the power discharges both parties from their unperformed obligations, but unless and until it is exercised the innocent party remains bound to perform. The precise justification for the ‘power to terminate’ remains unsettled, but its existence is rarely questioned. The problem is that conditions were not always thought of in this way. Traditionally, to say that a term of a contract was a ‘promissory condition’ or ‘promissory condition precedent’ was simultaneously to say: (i) that one party had promised to ensure that some event would occur (or that some fact were true); and (ii) that the performance (or fulfilment) of that promise was a condition of the other party’s obligation to perform …

€ (Westlaw)

Jordan English, ‘The nature of “promissory conditions”’ (2021) 137 Law Quarterly Review (Oct) 630.

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