Express Conditions
Express conditions live next door to promises, and the whole point of this concept is that the law treats them as two very different things.
16. Express Conditions
Contract law treats the breach of a promise differently than the failure of an express condition.
- Promises are commitments that parties make to one another. Express conditions are events that the parties agree will affect performance of one or more of their promises. For example:
- If A agrees to buy B’s guitar for $500, those are promises. A has promised to give B $500, and B has promised to give A the guitar.
- If A agrees to buy B’s guitar for $500 if the guitar is appraised to be worth at least $450, the parties have attached a condition to their promises.
- The breach of a promise may give rise to a claim for damages if there has not been substantial performance. In contrast, the failure of an express condition excuses the obligor’s performance.
- If an express condition is designed to protect one contracting party, that party may waive the condition. In the above example, A may decide to waive the condition if the guitar is appraised to be worth less than $450.
- If there is ambiguity as to whether contract language creates an express condition or a promise, the rules of construction disfavor interpreting a term as a condition, particularly if that would result in forfeiture.
- An express condition must be fully satisfied. Substantial performance will not satisfy an express condition.
- The Nevada FLE does not test the rules governing constructive conditions or contract provisions that create both promises and conditions.
A promise is a commitment whose breach can give damages, while an express condition is an event that gates a promise: if it fails, the obligor's duty is simply excused and nobody has breached. A condition must be fully satisfied, and substantial performance will not satisfy it.
Express conditions live next door to promises, and the whole point of this concept is that the law treats them as two very different things. A promise is a commitment: one party undertakes to do something, and if they fall short, that is a breach. An express condition is not a commitment at all. It is an event the parties have agreed will affect whether a promise has to be performed. Nobody promises that the condition will happen; it either happens or it does not, and that occurrence (or non-occurrence) is what flips the switch on the related promise.
Why does the distinction matter so much? Because the consequences run on entirely separate tracks. When someone breaches a promise, the other side may have a claim for damages, but only if there has not been substantial performance. Fall just short of full performance on a promise and you may still have done enough to avoid liability, with at most a damages adjustment for the gap. An express condition does not work that way. If an express condition fails, the obligor's duty to perform is simply excused. The obligor walks away from that performance, and critically, nobody has breached. A failed condition is not a wrong committed by anyone; it is just an event that did not occur, so the promise it was attached to never came due.
Two more pieces round it out. First, waiver. If an express condition exists to protect one particular party, that party, and only that party, can give it up. Take the guitar deal: the appraisal-at-least-$450 condition protects the buyer, so the buyer may waive it and go ahead with the purchase even if the appraisal comes in low. Second, construction. When the contract language is genuinely ambiguous about whether a term is a promise or a condition, the rules of construction lean against reading it as a condition. That tilt grows even stronger when treating the term as a condition would cause a forfeiture. The law would rather find a promise (with its softer, damages-and-substantial-performance regime) than a condition (with its all-or-nothing, excuse-the-whole-duty consequence) when the words could fairly go either way.
An express condition must be fully satisfied. Substantial performance, the very thing that can rescue a party who has fallen a little short on a promissory duty, will not satisfy an express condition. Close is not good enough; the condition either occurs exactly as written or it does not occur.
This concept is about express conditions only. The rules governing constructive conditions, and terms that create both a promise and a condition at once, are outside the tested scope, so no answer here turns on those.
"Promise breaks; condition just fails."
A broken promise can give damages, but only if there was no substantial performance.
A failed condition isn't a breach by anyone; it just excuses the obligor's performance.
Two tells that signal a condition question: the duty is gated on an event ("if," "only if," "provided that"), and one side is trying to get by on a near-miss.
Near-miss is the key.
Substantial performance can save a promise; it can never satisfy a condition, which must be fully satisfied.
Two more one-liners: only the protected party can waive the condition, and when the language is ambiguous, read it as a promise, not a condition, especially to avoid forfeiture.
A homeowner hires a contractor to repaint the house, with payment due "only if the homeowner's design consultant approves the finished color in writing." The contractor paints the house, and the color is a near-perfect match to the agreed sample, off by a shade so slight that an ordinary observer would not notice. The consultant, however, never signs off in writing. The contractor demands payment, arguing that the work substantially conformed to what the parties agreed.
The contractor cannot force payment on a substantial-performance theory. Now suppose the written-approval condition existed solely to protect the homeowner, and the homeowner, delighted with the color, tells the contractor to disregard the consultant and pay in full. The homeowner, as the protected party, may waive the condition, and the payment duty is then enforceable despite the missing approval.
An option says a party who substantially performed has satisfied an express condition, or that an obligor must still perform because performance was "close enough" or nearly complete.
Substantial performance can rescue a promissory duty, but an express condition must be fully satisfied; a near-miss does not satisfy a condition.An option treats the failure of an express condition as a breach, or lets a party recover damages because a condition did not occur; or it lets the wrong party waive, or reads ambiguous language as a condition / says forfeiture risk favors finding a condition.
A failed condition excuses the gated duty and is not a breach (no damages). Only the protected party may waive. Ambiguity is construed against a condition, especially to avoid forfeiture.A sympathetic but beside-the-point fact (the obligor relied, the gap was tiny, no one was harmed, the work was good) offered to excuse a failed condition or to manufacture a payment claim.
The operative rules are full satisfaction of the condition and excuse of the gated duty; equities and the size of the gap do not change the result.the stem makes one party's duty depend on an event, usually flagged with "if," "only if," "provided that," or "on condition that," and then someone tries to get paid or to force performance on a near-miss, or claims the other side breached when an event simply did not occur.
The instant you see a duty gated on an event plus a party arguing "close enough," run the condition check.
is the gating language a promise or an express condition?
If it is a condition, ask whether it was fully satisfied, because substantial performance will not do, and a failed condition excuses the gated duty rather than creating a breach or a damages claim.
Then check the side issues: only the protected party can waive, and if the language is genuinely ambiguous, construe it against a condition, especially to avoid forfeiture.
Any option that gives damages for a failed condition, lets a near-miss satisfy it, lets the wrong party waive, or flips the construction default is a distractor.
A homeowner agreed to pay a landscaper to install a garden, with the contract providing that payment was due only if the landscaper's work passed a written inspection by the homeowner's chosen garden designer. The landscaper completed the installation, and the result conformed to the agreed plan in all but one minor respect that an ordinary observer would not notice. The designer, however, never issued the written inspection report the contract called for. The landscaper demanded payment, arguing that the work was so nearly perfect that it amounted to substantial performance.
Is the landscaper entitled to payment?
A buyer agreed to purchase a parcel of land from a seller, with the contract providing that the buyer's obligation to close was conditioned on the buyer obtaining bank financing at a stated interest rate. The buyer applied for financing in good faith, but no bank would lend at that rate, so the buyer did not close. The seller, who had turned away another offer, sued the buyer for damages, contending that the buyer breached by failing to go through with the purchase.
Will the seller succeed in the damages action against the buyer?
A collector agreed to buy a painting from a gallery for a fixed price, with the contract providing that the collector's duty to pay arose only if an independent expert authenticated the painting as the work of a particular artist. The condition was included solely to protect the collector against paying for a misattributed work. Before any authentication occurred, the collector, who had separately satisfied herself of the painting's origin, told the gallery to disregard the authentication and proceed with the sale. When the gallery tendered the painting, the collector refused to pay, now insisting that the missing authentication relieved her of any obligation.
May the collector enforce the missing authentication to avoid paying?
A supplier and a manufacturer signed a contract under which the manufacturer would pay for a large custom order already produced and delivered. One clause stated that the manufacturer would pay "upon" the supplier's delivery of a signed certificate of conformity. It is genuinely unclear from the contract whether the parties intended the certificate to be an express condition on the manufacturer's duty to pay or merely a promise by the supplier to furnish paperwork. The supplier delivered conforming goods but, through an oversight, never provided the signed certificate. The manufacturer refused to pay anything, asserting that delivery of the certificate was an express condition that failed.
How should a court most likely interpret the certificate clause?
A homeowner and a contractor agreed that the contractor would remodel a kitchen for a fixed price. The contract did not gate either side's performance on any outside event; the contractor simply promised to do the work and the homeowner simply promised to pay. The contractor finished the remodel, but one cabinet door was hung slightly crooked, a defect that was minor relative to the project as a whole and inexpensive to correct. The homeowner refused to pay anything, claiming total nonperformance. The contractor sued to recover the contract price.
Is the contractor likely to recover, subject to an offset for the defect?