Treatment Impossible: (7) By affirmation of an impossibility: "If J. S. shall climb to the moon," or "if J. S. shall create a new manor." (8) By negation of a necessity: "If the sun shall not rise to-morrow," or "if my personal estate shall not be liable to pay my debts" (a). It is obvious that as a matter of logical construction the forms (a) and (B) are equivalent to unconditional promises, (y) and (8) to impossible or nugatory promises. And so we find it dealt with by the Roman law (b). It is equally obvious that (still as a matter of logical construction) there is nothing to prevent the condition from having its regular effect if the event is or becomes impossible in fact. For example, "if A. shall dig 1000 tons of clay on B.'s land in every year for the next seven years": here there may not be so much clay to be dug, or A. may die in the first year. But a promise so conditioned is perfectly consistent and intelligible without importing any further qualification into it: and it would obviously be more difficult to come to the conclusion that some further qualification is to be understood than in the case of a direct and unconditioned contract by A. himself to dig so much clay. Direct covenants or promises dependent on express conditions must be construed with reference to these general principles beyond this no rule can be given except that it is never to be forgotten that the object of judicial construction is to ascertain and give effect to the real meaning of the parties (c). Practically the discussion in our books of conditions and (a) Slightly modified from Savigny, Syst. § 121 (3. 156, 158). con (b) "Si impossibilis condicio obli- attigero, dare spondes? At si ita stipuletur: Si digito caelum non attigero, dare spondes? pure facta obligatio intelligitur ideoque statim petere potest." I. 3. 19. de inut. stipul. § 11. (c) See per Martin, B. in Bradford v. Williams, L. R. 7 Ex. at p. 259. their effect on the legal transactions into which they enter is limited to the following sorts of questions: 1. What contracts are really conditional, or in technical language, what amounts to a condition precedent (a): 2. The effect of conditions and conditional limitations in conveyances at common law and under the Statute of Uses (which topics are obviously beyond our present scope): 3. The effect of conditions in bonds. This form of contract is now gone out of use except for certain special purposes, but was formerly general, insomuch that almost all the older learning on the construction and performance of contracts is to be found under the head of conditions. Here there are some peculiarities which call for our attention in this place. tions in English law. Difference nical form the real strument. So far as the form goes, a bond is a contract dependent Bonds. on a negative condition. In the first instance the obligor between professes to be bound to the obligee in a sum of a certain the techamount. Then follows the condition, showing that if a and certain event happens (generally something to be done by meaning the obligor) the bond shall be void, but otherwise it shall of the inremain in force. "The condition is subsequent to the legal obligation; if the condition be not fulfilled the obligation remains" (b). This is in terms a promise, stated in a singularly involved way, to pay a sum of money if the event mentioned in the condition does not happen. But this, as everybody knows, is not the true nature of the contract. The object is to secure the performance of the condition, and the real meaning of the parties is that the obligor contracts to perform it under the conventional sanction of a penal sum. This view is fully recognized by the modern statutes regulating actions on bonds, by which the penalty is treated as a mere security for the performance of the contract or the payment of damages in de (a) The classical authority on this topic is Serjeant Williams' note to Pordage v. Cole, 1 Wms. Saund. 550; see also notes to Cutter v. Powell, in 2 Sm. L. C. (b) Sir W. W. Follett, arg. Beswick v. Swindells, 3 A. & E. 875. D D fault (a). On principle, therefore, a bond with an impossible condition, or a condition which becomes impossible, should be dealt with just as if it were a direct covenant to perform that which is or becomes impossible. In the former case the bond should be void, in the latter the rule in Taylor v. Caldwell (b) would determine whether it were avoided or not. We have seen that where the condition is illegal our Courts have found no difficulty in considering the bond as what in truth it is, an agreement to do Where con- the illegal act. But in the case of impossibility the law has stuck at the merely formal view of a bond as a mediately impossible, contract to pay the penal sum, subject to be avoided by is absolute, the performance of the condition: accordingly if the conaccording dition is impossible either in itself or in law the obligation remains absolute. dition im obligation to the purely formal construction. But subsequent im "If a man be bound in an obligation, &c., with condition that if the obligor do go from the church of St. Peter in Westminster to the church of St. Peter in Rome within three hours, that then the obligation shall be void. The condition is void and impossible and the obligation standeth good." So, again, if the condition is against a maxim or rule in law, as "if a man be bound with a condition to enfeoff his wife, the condition is void and against law, because it is against the maxim in law, and yet the bond is good" (c). In the same way, "when the condition of an obligation is so insensible and incertain that the meaning cannot be known, there the condition only is void and the obligation good" (d). On the point of subsequent impossibility, however, the possibility strictly formal view is abandoned, and an opposite result arrived at, but still in an artificial way. The condition, it is said, is for the benefit of the obligor, and the perform is a discharge. (a) As to these see Preston v. (b) 3 B. & S. 826, supra, p. 382. &c.'s in Coke's text are omitted). To the same effect Shepp. Touchst. 372. (d) Shepp. Touchst. 373. ance thereof shall save the bond; therefore he shall not lose the benefit of it by the act of God (a), and where the condition is possible at the date of the instrument "and before the same can be performed the condition becomes impossible by the act of God, or of the law, or of the obligee, there the obligation is saved" (b), or as another book has it "the obligation and the condition both are become void" (c). "Generally if a condition that was possible when made is become impossible by the act of God, the obligation is discharged" (d). As to the acts of the law and of the obligee this agrees with the doctrine of contracts in general: as to inevitable accident it establishes a different rule. The decision in Laughter's case (supra, p. 398) was an application of the same view, and it therefore appears that there should never have been any question of extending it to direct covenants or con tracts. The peculiar law thus laid down is distinctly recognized by modern authorities (e). However, if a bond appears on the face of it to be given to secure the performance of an agreement which it recites, the condition will take effect according to the true intention of the agreement rather than the technical construction resulting from the form of the instrument (ƒ). native Alternative conditions, at any rate as to immediate im- Alterpossibility, and conditions made impossible by the default conditions. of the parties, or otherwise than by the "act of God," are and default treated in the same way as direct promises. of parties; same law as for "When a condition becomes impossible by the act of the obligor, ordinary such impossibility forms no answer to an action on the bond" (g). (a) This reasoning appears both in Laughter's ca. 5 Co. Rep. 21 b, and Lamb's ca. ib. 23 b. (b) Co. Lit. 206 a. (c) Shepp. Touchst. 372. (d) Ro. Ab. 1. 449, G, pl. 1; repeated on p. 451, I, pl. 1. (e) 1 Wms. Saund. 238; per Williams, J. Brown v. Mayor of (f) Beswick v. Swindells, Ex. Ch., (g) Per Cur. Beswick v. Swindells, 3 A. & E. at p. 883. contracts. BIBLI Indian Contract Act departs from Eng. law. "When the condition of an obligation is to do two things by a day, and at the time of making the obligation both of them are possible, but after, and before the time when the same are to be done, one of the things is become impossible by the act of God, or by the sole act and laches of the obligee himself; in this case the obligor is not bound to do the other thing that is possible, but is discharged of the whole obligation. But if at the time of making of the obligation one of the things is and the other of the things is not possible to be done, he must perform that which is possible. And if in the first case one of the things become impossible afterwards by the act of the obligor or a stranger, the obligor must see that he do the other thing at his peril." "If the condition be that A. shall marry B. by a day, and before the day the obligor himself doth marry her in this case the condition is broken. But if the obligee marry her before the day, the obligation is discharged” (a). "If a man is bound to me in 201. on condition that he pay me 10%., in that case if he tender me the money and I refuse he is altogether excused from the obligation, because the default is on my part who am the obligee" (b). The provisions of the Indian Contract Act on the subject of this chapter are given in the Appendix (c). It will be seen that simplicity is gained at the expense of considerable departure from the principles of English law, and perhaps also at the expense of definiteness on some points. The most important change is the extension of the principle of Taylor v. Caldwell so as to make it an implied condition in all contracts that the performance shall remain possible. (a) Shepp. Touchst. 382, 392. And see pp. 393-4. (b) Brian, C. J. 22 Ed. 4. 26. |