"If I am bound to Catesby [then another judge of the Common Pleas] that my son shall serve him for seven years, and I come with my son to Catesby, and offer my son to him, and he will not take him, there because there is no default on my part I shall not forfeit the bond. In like manner if he took my son and afterwards within the term sent him away, it is unreasonable that this should be a forfeiture." Where a contract is in the alternative to do one of two Alter native one must formed. Where one struction. things at the promisor's option, and one of them is impossible,, contract. the promisor is bound to perform that which is possible (). (Where one We find the rule clearly stated in the Digest (). Where one' thing impossible, of two things contracted for in the alternative subsequently the becomes impossible, it is a question of construction for which no possible positive rule can be laid down, whether according to the true be perintention of the parties the promisor must perform the alternative which remains possible, or is altogether discharged (e). It was becomes held, indeed, in Laughter's case (d) that where the condition of impossible, a question a bond is for either of two things to be done by the obligor, of conand one of them becomes impossible by the act of God, he is not bound to perform the other. But this is to be accounted for by the peculiar treatment of bonds of which we shall speak presently, the right of election being part of the benefit of the condition, of which the obligor is not to be deprived. And even as to bonds the general proposition has been denied (r). In the absence of anything to show the intention in the particular case, the presumption should surely be the other way, namely that the promisor should lose his election rather than the promisee lose the whole benefit of the contract. Where either the promisor or the promisee, having the right under a contract to choose which" of two things shall be done, chooses one which becomes impos-' sible after the choice is determined, there (on authority as well. as principle) it is the same as if there had been from the first a single unconditional contract to do that thing (e). In Roman law the presumption seems distinctly in favour of the promisor (a) Da Costa v. Davis, 1 B. & P. 242. (b) Si ita stipulatus fuero: te sisti; nisi steteris, hippocentaurum dari proinde erit atque te sisti solummodo stipulatus essem. D. 45. 1. de v. o. 97 pr. (e) Burkworth v. Young, 4 Drew. (e) Brown v. Royal Insurance Co. Effects of default. Conditional contracts. remaining bound to do what is possible («); otherwise it agrees) with ours (b). The exception as to mora in the extract given in the note shows the application here of the general rule as to impossibility caused by acts of the parties. The case put is that the creditor has made his election (to have Stichus, suppose) but has neglected or refused to accept Stichus: now if Stichus dies he cannot demand Pamphilus. It is the same as if there had been a single promise, and the performance made impossible by the promisee's default. The same rule is given in another passage (c). There is yet something to be said of the treatment of conditional contracts where the condition is or becomes impossible. A condition may be defined for the present purpose as an agreement or term of an agreement whereby the existence of a contract is made to depend on a future contingent event assigned by the will of the parties (). The condition may be either that an event shall or that it shall not happen, and is called positive or negative accordingly. Now the event which is the subject-matter of the condition, instead of being really contingent, may be necessary or impossible, in itself or in law. But the negation of a necessary event is impossible and the negation of an impossible event is necessary. (u) Save that in the case of an alternative obligation to deliver specific objects at the promisor's election he still has an election in solutione, as it is said, i.e. he may at his option pay the value of that which has perished. See Vangerow, Pand. § 569, note 2 (3. 22 sqq.) where the subject is fully worked out. (b) Papinian says: Stichum aut Pamphilum, utrum ego velim, dare spondes altero mortuo, qui vivit solus petetur, nisi si mora facta sit in eo mortuo, quem petitor elegit; tunc enim perinde solus ille qui decessit praebetur ac si solus in obligationem deductus fuisset. Quod si promissoris fuerit electio, defuncto altero (i.e. before election made), qui superest aeque peti potest. D. 46. 3. de solut. et lib. 95 pr. He proceeds to this curious question: What if one dies by the debtor's default before election made, and afterwards the other dies without his default? No action can be maintained on the stipulation, but there is a remedy by doli actio. (c) Stipulatus sum Damam aut Erotem servum dari, cum Damam dares, ego quominus acciperem in mora fui; mortuus est Dama; an putes me ex stipulatu actionem habere? Respondit, secundum Massurii Sabini opinionem puto te ex stipulatu agere non posse; nam is recte existimabat, si per debitorem mora non esset, quominus id quod debebat solveret, continuo eum debito liberari. D. 45. 1. de v. o. 105. (d) Savigny, Syst. § 116 (3. 121); Pothier, Obl. § 199. 1 It therefore depends further on the positive or negative character of the contingency whether the condition itself is necessary or impossible. Thus we may have conditional promises with conditions of In what these kinds : Necessary: (a) By affirmation of a necessity. As a promise to pay £100, "if the sun shall rise to-morrow." (3) By negation of an impossibility: "If J. S. does not climb to the moon," or "if my executor does not sue for my debt to him." Impossible: (7) By affirmation of an impossibility: "If J. S. shall climb to the moon," or "if J. S. shall create a new manor." (d) By negation of a necessity: "If the sun shall not rise tomorrow," 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 (3) are equivalent to unconditional promises, (7) and (d) 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 (a) Slightly modified from Savigny, Syst. § 121 (3. 156, 158). (b) "Si impossibilis conditio obligationibus adiciatur, nihil valet stipulatio. Impossibilis autem conditio habetur, cui natura impedimento est quo minus existat, veluti si quis ita dixerit: Si digito caelum ways condition may be necessary possible. Treatment of conditions in English law. Bonds. Difference the tech nical form and the real meaning of the instrument. forgotten that the object of judicial construction is to ascertain and give effect to the real meaning of the parties (a). Practically the discussion in our books of conditions and 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 (7): 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, as we need hardly say, 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. So far as the form goes, a bond is a contract dependent on a between negative condition. In the first instance the obligor professes to be bound to the obligee in a sum of a certain amount. Then follows the condition, showing that if a certain event happens (generally something to be done by the obligor) the bond shall be void, but otherwise it shall remain in force. The condition is subsequent to the legal obligation; if the condition be not fulfilled the obligation remains" (c). 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 (a) See per Martin, B. in Bradford v. Williams, L. R. 7 Ex. at p. 259. (b) 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, 2 Sm. L. C. 11. (c) Sir W. W. Follett, arg. Beswick v. Swindells, 3 A. & E. 875. the payment of damages in default (). 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 the illegal act. But in the case Where conof impossibility the law has stuck at the merely formal view of a mediately bond as a contract to pay the penal sum, subject to be avoided by impossible, obligation the performance of the condition: accordingly if the condition is is absolute, impossible either in itself or in law the obligation remains absolute, according "If a man be bound in an obligation, &c., with condition that purely if the obligor do go from the church of St. Peter in Westminster struction. 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" (e). 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" (7). dition im to the formal con. is a discharge. On the point of subsequent impossibility, however, the strictly But formal view is abandoned, and an opposite result arrived at, but subsequent imposstill in an artificial way. The condition, it is said, is for the sibility benefit of the obligor, and the performance thereof shall save the bond; therefore he shall not lose the benefit of it by the act of God (), 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" (f), or as another book has (a) As to these see Preston v. Dania, L. R. 8 Ex. 19. (b) 3 B. & S. 826, supra, p. 336. (c) Co. Lit. 206 b (some of the &c.'s in Coke's text are omitted). To the same effect Shepp. Touchst, 372. (d) Shepp. Touchst. 373. (e) This reasoning appears both in Laughter's ca. 5 Co. Rep. 21b, and Lamb's ca. ib. 23 b. (f) Co. Lit. 206 a, |