Scholarly commentary. The court in Xxxxxxxxxxx also cites an article by Professor Xxxxxx Childres, Conditions in the Law of Contracts, 45 N.Y.U. L. Rev. 33 (1970). After examining scores of decisions citing the conditions pro- visions of the first Restatement, Childres concluded that almost all modern courts (as of 1970, that is) in practice would insist on strict performance of conditions only when the conditioning events are material to the agreement of the parties and the risks created thereby. Conditions that are merely “techni- cal” — that is, not related in substance to the real reason for the defendant’s nonperformance but asserted solely for the purpose of defeating the plain- tiff’s claim — he found to be generally excused under various theories such as adverse interpretation, waiver, prevention, or avoidance of forfeiture. While applauding modern courts for this approach to technical conditions, Profes- sor Childres criticized the judicial technique of using such theories of excuse because “the failure to articulate the real ground of decision misleads the pro- fession and thereby promotes uncertainty and litigation.” He recommended that courts abandon these theories in favor of a broader rule: Only material conditions should be strictly enforced. At least some courts appear to share Professor Childres’s belief that the issue of materiality should be relevant to the question of how strictly a con- dition should be enforced. See, e.g, Xxxxxx v. Continental Illinois National Bank & Trust Co., 706 X.0x 000, 000 x.0 (0xx Xxx. 1983) (slight delay in mak- ing interest payments would not trigger failure of condition, accelerating payment of entire debt obligation; earlier precedents to the contrary were “decided in the salad days of American legal formalism which were marked by an unprecedented adherence to the letter of contractual text — a juris- prudential posture that has since been eclipsed by the kind of materiality approach embodied in [later Illinois cases]”); Xxxxxxx v. U.S.A. Foods, Inc, 912 F. Supp. 969 (E.D. Mich. 1996) (no acceleration permitted; payments slightly late, but substantial performance present). Adopting arguendo Professor Childres’s approach, does it appear to you that the condition involved in the Xxxxxxxxxxx case was material?
