Provisions of commitment - Terms & Conditions in contract law
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| Provisions of commitment - Terms & Conditions in contract law |
What are “conditions” upon the duty to perform a contract?
Condition Precedent: (Suspensive conditions)
A suspensive condition is a condition which (as the name suggests) suspends rights and obligations until the uncertain future event occurs. If the suspensive condition is never fulfilled, the suspended rights and obligations never come into existence. It is as though they never existed. Condition precedent is where something must take place or a situation must arise prior to or before a party has a duty to perform. This type of conditions creates the obligation under the Jordanian legal system. A condition precedent is one the fulfillment of which completes an inchoate title. It also always comes before the creation of an interest. Condition precedent, the condition precedent must be valid in law. Therefore, transfer will be void if the condition precedent is impossible to performance, or immoral or opposed to public policy.
Example: Maikel agrees to buy Lisa vehicle if the latter buys new tiers.
Condition Subsequent: (resolutive condition) In the case of a resolutive condition, there is no suspension or postponement of terms in a contract. Rights and obligations come into existence immediately upon agreement between the parties. If a resolutive condition is fulfilled, the operation of the rights and obligations cease. excuses contractual performance if some future event takes place or situation arises. This type of conditions extinguishes (remove) the obligation under the Jordanian legal system. A condition subsequent is one of the fulfillment of which extinguishes a title already completed. The transfer becomes absolute and the condition will be ignored if that condition is impossible of performance or immoral or against to public policy. However, the invalidity of this type of conditions can be ignored.
Example: :Maikel agrees to stop cutting Lisa grass if it rains.
Conditions elements under the Jordanian legal system:
· In order to constitute a condition under the Jordanian legal system, the same elements of contracts must be available (e.g. agreement and capacity)
· Condition must not be impossible (i.e. natural impossibility, relative impossibility, absolute impossibility, legal impossibility)
· Condition must be uncertain, otherwise it becomes a term even if we never know when it will be happened
Conditions types:
Simple voluntary condition: it is always valid because it is related to other form of legal act. The expression is enough to materialize to condition (performance is not necessary). However, if the contract is concluded, the other party can claim for forced performance in the case of the debtor refusal.
Example:
Valid precedent simple voluntary condition:
I am going to sell my house if you buy the land.
Valid subsequent simple voluntary condition:
I am going to revoke the contract if you make any problem with any neighbors.
Probable condition: this type of conditions is always valid and related to probabilities without any parties’ autonomies interference.
Example:
Valid precedent probable condition:
I will paint your house if it rains
Valid subsequent probable condition:
I am going to stop working with you if Syrian crises resolved this year.
Mixed condition: this type of conditions is always valid and related with third parties’ autonomy.
Example:
Valid precedent mixed condition:
I will pay you double salary if you get married from Sarah.
Valid subsequent mixed condition:
Your rental contract will be terminated if you get married from Sarah.
Pure voluntary condition: is related to one of the parties’ autonomy and to the main contract itself.
Example:
Valid precedent pure voluntary condition related to creditor autonomy:
I am selling you my house if you would.
Invalid precedent pure voluntary condition related to debtor autonomy:
I am selling you my house if I would.
Valid subsequent pure voluntary condition related to creditor autonomy:
I am going to stop working with if you would.
Valid subsequent pure voluntary condition related to debtor autonomy:
I am going to stop working with if I would.
Requirements for condition materialization:
Consideration must be given to:
1. the condition itself and completely as agreed on.
2. parties if they are related to the condition.
3. the duration if considerable.
4. the condition occurrence by intrusion of parties’ autonomies.
Legal effect during suspension condition:
Precedent condition:
· Transferable to private and general posterity (if agreed)
· Taking all the required procedure to protect the right (such as registration)
· Debtor obligation cannot be extinguished by a statute of limitations.
· No way for forced execution.
Subsequent condition:
· Creditor is eligible for forced execution
· A statute of limitation starts from the conclusion of the contract
· No way to conduct a setoff except if parties suspend the setoff on the same subsequent condition.
Legal effect after the materialization (performed or occurred or non-materialization (fail):
Performed precedent condition:
· Obligation is certainly created
· Obligation is coming into force by law
· All provisions of commitment are created
Fail precedent condition:
· Obligation is extinguished
· Contract becomes null
Performed subsequent condition:
· Obligation is extinguished
· Giving back what creditor/debtor already owned, if it is impossible to achieve, compensation must be done
Fail subsequent condition:
· Obligation is certainly existed
Term in contract law
A contractual term can be defined as ‘Any provision forming part of a contract’. Each term gives rise to a contractual obligation and breach of which can give rise to litigation. All terms are not stated expressly but some terms carry less legal gravity as because they are peripheral to the objectives of a contract. it is important to make a clear distinction between “term” as a provision in the contract and “term” when it is related to the activation or termination of obligation. In order to make such distinction, see ***.
Term is governed by article 402 of the Jordanian Civil Law where it whether enforces the obligation or terminates it.
Term consists of two elements: future matter and certain event or situation. Can we consider legality as an element?!
Term can be contractual, legal or even judicial.
Kinds of terms:
Legal term: statute of limitation
Judicial term: grace period
Contractual term: resolutive term vs suspensive term
*** In other words, terms can be either implied or expressed terms:
implied terms are the terms in which it has not been mentioned by either party that will nonetheless be included in the contract, often because the contract does not make any commercial sense without that term. There are two main types of implied term. Namely, terms Implied by Statue and terms Implied by Courts.
Express Terms: - Express terms can be defined as the terms that have been specifically mentioned and agreed upon by both parties at the time of making that contract and they can be either in oral or in written.
*** “Implied Terms May Override Express Terms In Certain Circumstances Such As Where They Are Implied By Statue".
As we know that the rights and duties of both employers and employees are to be found in the contract of employment which are called terms of the contract. Some of these terms are express terms which means that they are expressly or specifically stated, either orally, say at the initial interview, or in writing form. Express terms include such things like pay, hours and holidays. For this the law states that certain express terms must be put in writing and handed over to the employee in the form of a written statement of particulars within two months of starting the work.
There are other contractual terms called implied terms and they are not expressly or explicitly stated because, in the main, they are fairly obvious to both parties to the contract of employment. Occasionally the courts will imply a term in a contract of employment where an important term has been left out. Similarly Implied terms include statutory rights, such as the right to equal pay and duties such as a duty of care.
Implied terms refer to the practice of setting down the default rules for contracts. When the terms that the contracting parties expressly choose run out or setting down mandatory rules which usually operate to override the terms that the parties may have themselves chosen. The purpose of implied terms is to often supplement a contractual agreement in order to make the deal effective for the business purposes and to achieve fairness between the parties or to relieve hardship.
