Sec 545

A condition is a limitation making a contract arbitrarily dependent on an event at the time uncertain.1 Hence there can be no condition, in the proper sense of the term, when the limitation is one of the necessary incidents of the particular act: conditiones tacitae, or quae insunt, tacite insunt, extrinsecus veniunt.2 Limitations of this class are usually mere matters of surplusage: "frustra adduntur."3 .

Sec 546

A limitation dependent upon a present or past event is not technically a condition, "in praetoritum vel praesens collata, relata, concepta conditio," e. g. if Titius were consul last year, or if Titius be consul now. Such a provision may be effective, but the contract in such a case is not conditional, but absolute.4 But when the limitation is as to an event which has transpired but of which the parties are not yet advised, and which they look upon as a future event, it is to be regarded as a condition based on a future contingency. The condition is, "if I am advised next week of a particular fact, then I will be bound;" as where a party agrees to sell an imported commodity next week if a particular piece of intelligence by that time transpire of the failure of the crop of last year. We have several illustrations in the Roman standards of conditions as to past or present uncertain events.5 "Condiciones, quae praeteritum vel ad praesens tempus referentur, aut statim infirmant obli-gationem, aut omnino non differunt, veluti: si Titius consul fuit, vel si Maevius vivit, dare spondes ? Nam si ea ita non sunt, nihil valet stipulatio; sin autem ita se habent, statim valet. Quae enim per rerum naturam sunt certa, non morantur obli-gationera, licet apud nos incerta sint." - On the other hand, interesting questions were raised as to whether any future event was to be regarded as uncertain; but this was answered by saying that so far as we are concerned, all future is uncertain: "nec rerum naturam intuendam, in qua omnia certa essent, cum futura utique fierent, sed nostram inscientiam aspici debere."1 The question is whether "quantum in natura hominum sit, possit sciri."2 But in any view, if the event on which the condition depends is certain, then the promise is not conditional; " Qui sub condicione stipulatur, quae omnimodo exstatura est, pure videtur stipulari."3

Condition is a limitation on an uncertainty.

Limitation must be as to an uncertainty.

1 Savigny, op. cit. 122.

2 L. 1, sec 3, de Cond. (35-1); L. 99 eod. L. 25, sec 1, quando dies (36. 2).

3 See Lang. Cont. I. 999; Grey v. Friar, 4 H. L. Cas. 565; Coddington v. Paleologo, L. R. 2 Exch. 193; Clement v. Clement, 8 N. H. 210.

4 See Savigny, op. cit. 126, citing L. 16, de injusto (28, 13), and other authorities. To same effect, see Olive v. Booker, 1 Exch. 416.

5 sec 6 1. de V. 0. 3. 15; 1. 37-39 D. de R. C. 12. 1; 1. 100, 120, D. de V. O. 45. 1. sec 6. L. cit.

Sec 547

A contract in which an impossibility is a condition precedent is of itself void.4 "Si impossibilis condicio obligationibus adiciatur, nihil valet stipulatio. Impossibilis autem condicio habetur, cui natura impediment© est, quo minus existat, veluti si quis ita dixerit, si digito caelum attigero,dare spondes."5 Thus,in a case already cited, where the defendant was sued on a promise to give the use of a certain music hall on certain days, the continued existence of the music hall being a condition of the fulfilment of the contract, it was held a good defence that the hall was burned down before the time appointed.6 But this rule does not prevail, as we have seen, where the casus or other obstacle set up When contract depends on impossibility it is void does not absolutely prevent performance, though it may make performance extremely difficult or expensive;l nor where the performance can be by some other agency than that which it becomes impossible to use;2 nor when it is a risk that the promisor took.3 On the same reasoning a bond with an impossible condition is void.4 "The object [of a bond] 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. . . . On principle, therefore, a bond with an impossible condition, or a condition that becomes impossible, should be dealt with just as if it were a direct covenant to perform that which is or becomes impossible."5 At the same time a bond to be void on the happening of an impossibility would bind; and so of a bond conditioned on an event which became impossible through the laches of the obligor.6 Legal impossibility, as we have already seen, stands in this respect on the same basis as physical impossibility.7 In no case can impossibility be set up as a defence by the party by whom it is brought about.8 - Payment of the premium is a condition precedent to the recovery of insurance;9 and though the duty may be suspended by a state of war between the country of the insured and that of the insurer, that a tender of the overdue premiums, after peace, renews the policy.1 But the insanity of the insured does not have this effect.2

1 L. 28, sec 5 D. de Jud. (5. 1).

2 L. 38 D. de R. C. (12. 1).

3 L. 9, sec 1 D. de nov. (46. 2). Mr. Langdell (1 Cont. 1000) maintains that "when the making of a covenant or promise depends upon whether a certain event has already happened, there is no condition of any kind. If the event has happened, the covenant or promise is absolute from the beginning; if the event has not happened, there is no covenant or promise at all." To this he cites Olive v. Booker, 1 Exch. 416, and Behn v. Burness, 3 B. & S. 751. But this does not apply when the condition is the reception of intelligence to be hereafter received as to the past event.

4 Harvy v. Gibbons, 2 Lev. 161; Gil-pins v. Consequa, Pet. C. C. 91; Hughes v. Edwards, 9 Wheat. 489; Howell v. Cowpland, L. R. 9 Q. B. 467; Dickey v. Lenscott, 20 Me. 453; Knight v. Bean, 22 Me. 531; Stewart v. Loring, 5 Allen,306. See, also, to same effect, Benj. on Sales, 3d Am. ed. 570, citing Faulkner v. Lowe, 2 Ex. 595; Hall v. Wright, E. B. & E. 746; Lovering v. Coal Co., 54 Penn. St. 291. See, for other cases, supra, sec 329.

5 sec 11, I. de inut. stip. (3, 19).

6 Taylor v. Caldwell, 3 B. & S. 826; supra, sec 300 et seq.

1 White v. Mann, 26 Me. 361; supra, sec 300, 315.

2 Supra, sec 331, 315, 328; see Mizell v. Burnett, 4 Jones N. C. 249.

3 Supra, sec 311; Hughes v. Edwards, 9 Wheat. 489; Lord v. Wheeler, 1 Gray, 282; School Dist. No. 1 v. Dau-chy, 25 Conn. 530; Beebee v. Johnson, 19 Wend. 500; Harmony v. Bingham, 2 Kern. 106; Delaware R. R. Co. v. Bowne, 58 N. Y. 573; Kribs v. Jones, 44 Md. 396; Merrill 77. Bell, 6 Sm. & M. 730; see Howell v. Ins. Co., 44 N. Y. 276. In Taylor 9. Caldwell, 3 B. & S. 826 (supra, sec 300), the rule is stated to be that " in contracts in which the performance depends on the continued existence of a given person or thing, a condition is applied, that the impossibility arising from the perishing of the person or thing shall excuse the performance." S. P. Appleby v. Meyer, L. R. 2 C. P. 651, reversing S. C, 1 C. P. 615; Robinson v. Davison, L. R. 6 Ex. 269; Howell v. Cowpland, L. R. 9 Q. B. 462; aff. L. R. 1Q. B. 258; Russell v. Levy, 2 Low. Can. 457, cited Benj. on Sales, 3d Am. ed. 555. In Dexter v. Norton, 47 N. Y. 62, a contract to sing was held to be conditioned on the defendant's capacity to sing, and that sickness producing incapacity was a defence.

4 Supra, sec 329.

5 Pollock, Wald's ed. 377.

6 Supra, sec 309.

7 Supra, sec 305.

8 Supra, sec 309,312; infra, sec 603, 661.

9 Roshner v. Ins. Co., 63 N. Y. 160 Evans v. Ins. Co., 64 N. Y. 304.