Express performance conditions
1. Condition – mutually agreed upon promise modifier
2. Words to look for – “if”, “provided that”, “so long as”, “subject to”, “in the event that”, “until”, and “on condition that”
3. Types of express conditions
a. True condition – an event beyond the influence of either party to the K that affects the duty to perform
b. Condition coupled with an express covenant
i. Ex – “S covenants to ship the next day and B promises to buy only if S ships the next day”
c. Condition coupled with an implied covenant
i. Ex – “the sale is conditioned on B obtaining an 8% mortgage” – implied covenant of reasonable effort
4. Standard of compliance
a. General rule – strict compliance with express conditions
b. Exception – condition based on the approval of one of the contracting parties
i. Reasonable person standard
5. Excuse of express conditions
a. Estoppel – statement by the protected person BEFORE the conditioning event was to occur and requires a change of position
b. Waiver – statement by the protected person AFTER the conditioning event was to occur and does not require a change of position
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