Washington Law Review


Conditions, super-imposed upon the terms of a contract by law, present some complex problems. This comment aims to point out one small but important and recurrent factual situation in which proper argument and presentation are vital in order that the correct theory of action or defense may be accurately defined. We postulate a contract for the sale of land, S to convey upon final payment. Since the contract has fixed the same date for final payment and for conveyance, the law makes these promises dependent one upon the other through the operation of constructive conditions. Normally neither party can put the other in default without a seasonable tender of his own performance. We assume these additional facts. The time for payment and conveyance has passed, and neither party has tendered his performance. B then says, "I can't perform." S tenders no deed, and either changes his position so that he cannot convey to B upon a subsequent demand for performance, or now desires to bring an action against B to quiet title and/or to get damages for B's non-performance. B argues in an action for specific performance or damages against S that since B was never put in default by the tender of the deed, S himself has breached the contract. B defends S's action against him, arguing that his payment is still dependent upon S's tender of conveyance.

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