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(References are to sections)

Section

Waiver of vendor's lien on real estate. ...

729

Waiver of the condition of payment in a cash sale..

730

Giving the buyer a right to use the goods as his own, indicates transfer of

title.....

731

Effect of giving a worthless check..

732

Summary of principles governing transfer of property without performance

of conditions in cash sales....

733

Waiver in conditional sales-nature of such sales ..

734

A conditional seller may recover the price though title has not passed.

735

Conditional seller's election of remedies.

736

Analogy of mortgage....

737

Invalidity of reasons for distinguishing conditional sales from mortgages. 738

Surrender of title by estoppel. ....

739

Discharge of covenants restricting the use of real estate by promissory

estoppel or laches.....

740

Whether consent to breach of condition on one occasion excuses similar future

breaches....

741

Whether stating one ground of defence discharges other grounds..

742

When refusing tender or demand on one ground, precludes setting up other

reasons....

743

Application of the principle to contracts of sale, insurance and employment... 744

Conditions in insurance policies..

745

Meaning of void and voidable...

746

Classification of cases where insurer's conduct has been thought to preclude

insistence on a condition or excuse.

747

The insurer's conduct when the policy is issued..

748

Decisions holding that the parol evidence rule forbids enforcement of a parol

waiver contemporaneous with the creation of a written contract.

749

Contrary decisions...

750

Presumption of knowledge on the part of the insurer of invalidating facts at

the time of issuing the policy......

751

Waiver of condition after the issue of the policy

752

Whether inaction by an insurer after knowledge of a breach of condition

waives the breach.....

753

Insurer's right to premiums after a breach avoiding a policy.

754

Life insurance.....

755

Cases where the premium has been already paid..

756

Right of insurer to retain the premium when the policy is avoided.

757

No affirmative action on the part of the insurer is generally necessary in

order to avoid a policy for breach of condition. ...

758

Necessity of written modification or waiver of conditions in policy.

759

Express limitation on powers of agents to waive conditions. .

760

Whether an ineffectual attempt to collect a premium deprives the insurer of a

known defence. .....

761

1

Temporary breach of warranty or condition.

762

Waiver after loss. ....

763

Requesting proof of loss or appraisal.

764

Non-waiver agreements

765

Whether a breach of condition avoids an entire policy insuring several articles. 766

What is meant by a forfeiture.

769

What is meant by penalty....

770

Non-enforceability of provisions for forfeiture in mortgages.

771

Conditional sales distinguished from mortgages.

772

Technicality of the distinction..

Relief from penalties in bonds.

774

Early history of the jurisdiction of equity to relieve from forfeiture and penal-
ties.....

775

Provisions for penalty are invalid in any contract.

776

How far the question of penalty or liquidated damages is one of construction 777

Intention of the parties...

778

Whether the liquidation must be reasonable.

779

Distinction between contracting in advance for a penalty and making an un-
reasonable accord after breach....

780

Alternative contracts...

781

The form of a contract cannot make a penalty enforceable.

782

Rules aiding the court in determining whether a sum is liquidated damage. . 783

Classification by Somerville, J., and by Lord Dunedin. ...

784

Reasonable stipulated damages per day for delay are enforceable.

785

Stipulation for attorney's fees.

786

Other illustrations...

787

Whether the tendency of the court is to hold a doubtful provision a penalty or

liquidated damages.

788

Prevention of performance makes provision for liquidation inoperative. 789

Deposits....

790

Instalment contracts...

791

Civil law...

792

A condition may involve a penalty or forfeiture.

793

Excuse for non-performance of a condition requiring a certificate of an ar-
chitect or engineer....

794

Distinction between certificates in building contracts and under insurance

policies...

795

Effect of the architect's death..

796

Unreasonable but not fraudulent refusal of certificate...

797

A builder may be liable though he has received an architect's certificate. 798

Where a debt has arisen, a condition relating to the time of payment which

becomes impossible is dispensed with..

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The problem suggested in this chapter is confined to bilateral contracts... 812

Various methods of dealing with the problem..

813

Meaning of failure of consideration. ....

814

Differences in effect of the different theories...

815

Under the early law mutual promises were independent.

816

Lord Mansfield introduced the doctrine of mutual dependency.

817

Boone v. Eyre......

818

Pordage v. Cole.

819

Serjeant Williams' Rules. .

820

Comment on Serjeant Williams' first two Rules..

821

Comment on Serjeant Williams' Rules 3, 4, and 5..

822

Criticism of the general theory of Serjeant Williams' Rules..

823

Intent of the parties controls if expressed.

824

Fictitiously imputed intentions....

825

Intention must relate to the time of the formation of the contract..

826

Implied conditions if based on intention must be given strict effect.

827

Promises called absolute are generally not strictly so.

828

Order of time of performances...

829

Order of performances when one or both take time..

830

When performance on one side requires an indefinite time..

831

Readiness and willingness..

832

What amounts to an offer to perform...

833

Tender is not necessary in equity unless time is of the essence.

834

When concurrent conditions are implied...

835

Effect of the place of performance on concurrent conditions.

836

Concurrent conditions are not necessarily mutual...

837

Failure to perform on the part of the plaintiff owing to excusable impossi-

bility.....

838

ignorance of the plaintiff's breach of contract when the defendant fails to

perform..

839

(References are to sections )

Section

Promises in separate contracts...

840

Part performance on one side..

841

Substantial performance...

842

Benefit derived by the defendant from the plaintiff's part performa

843

Breach in limine....

844

Distinction between breach as to the time of performance and as to character

of performance...

845

Meaning of time being of the essence.

846

A breach in limine as to time is fatal in contracts of sale.

847

Whether the time for the payment of money is of the essence..

848

Time in building contracts....

849

Time is not of the essence in contracts of service..

850

When time is essential in performing collateral stipulations.

851

In equity time is not generally of the essence. ....

852

Time is of the essence in equity in a contract of option...

853

Time is of the essence even in equity if the property is of speculative or fluc-
tuating value...

854

Statutory adoption of the equity rule.

855

Delay may be waived..

856

Hour of performance. .

857

Partly bilateral contracts...

858

Mutual debts do not cancel one another..

859

General dependency and particular dependency.

860

Divisible contracts-meaning of the term...

861

When a contract will be construed as divisible.

862

When transactions constitute several contracts..

863

Conditions implied in divisible contracts.

864

English test of intent to repudiate....

865

Materiality of the breach is the true test.

866

American decisions...

867

Defect in quality of an instalment.

868

Right temporarily to withold performance distinguished from right to refuse

absolutely....

869

Effect of part performance of a divisible contract.

870

Whether the party first in default can ever recover..

871

Effect of stating a price for part of the performance in a contract not wholly

divisible......

872

A bilateral contract to form a future contract or sale....

873

Distinction between performance and preparation for performance.

874

Prospective breach of promise excuses performance of the counter promise.. 875

Prospective failure of consideration where conditions are concurrent.... 876

Prospective inability..

877

The seller's lack of title to specific property excuses the buyer....

878

Encumbered or incomplete title.

879

Insolvency or bankruptcy

880

Inability to perform unless the other party performs..

881

Both parties unable or unwilling to perform...

882

Rules of damages provide for cancellation of mutual obligations to exchange

performances

883

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