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Author Topic: Conditions - Express v. Constructive  (Read 5266 times)

gcoswaltiii

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Conditions - Express v. Constructive
« on: April 24, 2006, 07:33:08 PM »
I am idiot…please help me.  I know that an Express Condition must be followed to the letter and that substantial performance does not apply. However, if the court finds it is a promise that is material to the contract…then it becomes a constructive condition.  If there has been substantial performance then the condition has been satisfied and the other party must deliver performance but can collect actual damages.  To me they seem very much the same and I am having trouble distinguishing between the two once they have been classified.  Does anyone have any ideas???  Thanks for your help…

Also if someone can tell me the difference b/n a material breach and a non-material breach I would forever be in your debt...

Frappe

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Re: Conditions - Express v. Constructive
« Reply #1 on: April 24, 2006, 07:45:38 PM »
The way I see it is that an express condition is specifically stated by the parties, whereas a contructive condition is created by the court. 

I didn't think an express condition can become a constructive condition....I see them as two separate things.

Anyone else have thoughts?

Jumboshrimps

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Re: Conditions - Express v. Constructive
« Reply #2 on: April 24, 2006, 08:53:40 PM »
an express condition is specifically stated by the parties, whereas a contructive condition is created by the court. 


This is correct (but the constructive condition is implied by common law or precedent- which is probably what you meant). If Buyer contracts with Builder for a house for $200,000, and the contract says that payment is not due unless and until all the walls are painted, then no amount of performance short of painting all the walls will trigger Buyer's duty to pay. That is an express condition. It can never be a constructive condition becasue it is express. Failure to meet an express condition is, by definition, a material breach, since there is no duty to pay until the condition is met.

The doctrine of substantial performance applies only to implied (constructive) conditions. It allows the breaching party to bring suit even though he has not fully performed. The substantial performance is treated as is full performance. That is, it triggers the other party's duty to perform.

So, an express condition is always material and is never satisfied by substantial performance.

A constructive condition makes the duties dependent on each other, and may be satisfied by substantial performance.

lakerat

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Re: Conditions - Express v. Constructive
« Reply #3 on: April 25, 2006, 12:19:27 AM »
Also if someone can tell me the difference b/n a material breach and a non-material breach I would forever be in your debt...

  Rest. 2nd 241 -- that what you're looking for?

gcoswaltiii

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Re: Conditions - Express v. Constructive
« Reply #4 on: April 25, 2006, 12:59:00 AM »
Thank you so much...that was exactly what I needed...

Highway

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Re: Conditions - Express v. Constructive
« Reply #5 on: April 25, 2006, 09:10:18 AM »
I wouldn't say that an express condition is never satisfied by substantial performance. I don't know the name of the case, but I remember reading one about somebody who had a home built, and the contract expressly stated that all pipes were to be from a specific company. They later found out that not all the pipes came from that company, but the court said that the defendent proved that the pipes used were in all ways similar to the pipes requested, aside from the name on them. They made the plaintiff pay up.

Jumboshrimps

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Re: Conditions - Express v. Constructive
« Reply #6 on: April 25, 2006, 09:37:56 AM »
I wouldn't say that an express condition is never satisfied by substantial performance. I don't know the name of the case, but I remember reading one about somebody who had a home built, and the contract expressly stated that all pipes were to be from a specific company. They later found out that not all the pipes came from that company, but the court said that the defendent proved that the pipes used were in all ways similar to the pipes requested, aside from the name on them. They made the plaintiff pay up.

Jacobs & Young v. Kent.

The term concerning the pipes was an express term; but using the correct brand of pipes was not an express conditionwhich triggered the duty to pay.
That case illustrates the differnce very well.

jimmyjohn

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Re: Conditions - Express v. Constructive
« Reply #7 on: April 25, 2006, 01:20:31 PM »
I wouldn't say that an express condition is never satisfied by substantial performance. I don't know the name of the case, but I remember reading one about somebody who had a home built, and the contract expressly stated that all pipes were to be from a specific company. They later found out that not all the pipes came from that company, but the court said that the defendent proved that the pipes used were in all ways similar to the pipes requested, aside from the name on them. They made the plaintiff pay up.

Jacobs & Young v. Kent.

The term concerning the pipes was an express term; but using the correct brand of pipes was not an express conditionwhich triggered the duty to pay.
That case illustrates the differnce very well.

Nice distinction, that makes it much more clear.  The only exception to the express condition thing that I can find are the doctrines of unfair forfeiture and waiver/estoppel.  That doesn't involve substantial performance, however. 

Highway

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Re: Conditions - Express v. Constructive
« Reply #8 on: April 25, 2006, 03:12:51 PM »
I wouldn't say that an express condition is never satisfied by substantial performance. I don't know the name of the case, but I remember reading one about somebody who had a home built, and the contract expressly stated that all pipes were to be from a specific company. They later found out that not all the pipes came from that company, but the court said that the defendent proved that the pipes used were in all ways similar to the pipes requested, aside from the name on them. They made the plaintiff pay up.

Jacobs & Young v. Kent.

The term concerning the pipes was an express term; but using the correct brand of pipes was not an express conditionwhich triggered the duty to pay.
That case illustrates the differnce very well.

I just went back and reviewed my notes on that case. You're right in that if you contract for a "whim," you should make sure payment is based on the fulfillment of that whim.

Still, in this case, the specific pipes were expressly written into the contract. I disagree that the use of the specific pipe was merely a "term" and not a condition of the contract. By not using the pipes agreed upon in the contract, the builder was in breach. I don't think you can argue that.

The trial court actually granted SJ for the buyer. It was the appellate court that overruled by indicating that the measure of damages would not be the cost of replacement, but rather the difference in value. The cost of replacement is the general measure for this type of breach, except when the cost is grossly and unfairly out of proportion to the good to be attained.

I think that the court used some crafty cerebral maneuvering to get around the express condition and show that substantial performance can satisfy it. This proves my point, though, that you can't really say that an express condition is NEVER satisfied by substantial performance. I'm sure a court somewhere can find a way to nullify that statement, as they can with almost any definitive statement. That's what keeps the law interesting - its fluidity.

Jumboshrimps

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Re: Conditions - Express v. Constructive
« Reply #9 on: April 25, 2006, 06:51:47 PM »

Still, in this case, the specific pipes were expressly written into the contract. I disagree that the use of the specific pipe was merely a "term" and not a condition of the contract. By not using the pipes agreed upon in the contract, the builder was in breach. I don't think you can argue that.

The use of "Reading" pipes was, indeed a condition of the contract (as well as a term). The issue is whether that condition was dependent or independent of the duty to pay. The Jacobs court's craftiness is in the fact that is declared the brand of pipe condition to be independent of the payment condition. Therefore the duty to pay remained despite the breach.