Effect of nonoccurrence of condition Sample Clauses

Effect of nonoccurrence of condition. Once the court has determined that the contract term in question really does expressly condition the defendant’s duty of performance on the occurrence of some event, what will be the effect of its nonoccurrence? Until the conditioning event does occur, the duty does not arise; at the point when it cannot (or for some reason clearly will not) occur, the defendant is discharged. Restatement (Second) §225. Although the “strict enforcement” approach to express conditions may be characteristic of classical contract law, it is alive and well today, as the Oppenheimer opinion dem- onstrates. The court in Xxxxxxxxxxx relies principally on two earlier New York decisions. One of those is Maxton Builders v. Lo Xxxxx. (You might be inter- ested to know that the attorney in Maxton who failed to give the requisite writ- ten notice of cancellation on behalf of his client was later held to have thereby committed actionable malpractice as a matter of law, despite assertions that he relied on the other attorney’s assurances that oral notice was sufficient. Lo Xxxxx v. Plishkin, Xxxxxx & Xxxx, 558 N.Y.S.2d 185 (App. Div. 1990).) The Restatement (Second) continues the general rule of strict enforcement of express conditions, and Comment d to §237, quoted by the court in Xxxxx- xxxxxx, rejects the application of a “substantial performance” qualification to that rule. (As the court indicates, there are a variety of bases on which an express condition might be deemed “excused.” Some of those are discussed in the Notes below, and in J.N.A. Realty Corp. v. Cross Bay Chelsea Inc., the case which follows.)