PJC Business

C ONTRACTS

PJC 101.33

PJC 101.33 Conditions Precedent (Comment)

Conditions precedent defined. “A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Conditions may, therefore, relate either to the formation of contracts or to liability under them.” Hohenberg Bros. Co. v. George E. Gibbons & Co. , 537 S.W.2d 1, 3 (Tex. 1976). “A condition precedent is an event that must happen or be performed before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton , 840 S.W.2d 952, 956 (Tex. 1992). Conditions precedent to an obligation to perform are acts or events that are to occur after the contract is made and that must occur before there is a right to immediate per formance and before there can be a breach of contractual duty. Hohenberg Bros. Co. , 537 S.W.2d at 3. Creation of condition precedent. Although no particular words are necessary to create a condition, terms such as “if,” “provided that,” and “on condition that” usually connote a condition rather than a covenant or promise. Community Health Systems Professional Services Corp. v. Hansen , 525 S.W.3d 671, 683 (Tex.2017) (citing Hohenberg Bros. Co. , 537 S.W.2d at 3). Absent such a limiting clause, whether a pro vision represents a condition or a promise must be gathered from the contract as a whole and from the intent of the parties. Temple-Eastex Inc. v. Addison Bank , 672 S.W.2d 793, 798 (Tex. 1984); Hohenberg Bros. Co. , 537 S.W.2d at 3. Conditions not favored. To prevent forfeitures, courts are inclined to construe provisions as covenants rather than as conditions. PAJ, Inc. v. Hanover Insurance Co. , 243 S.W.3d 630, 636 (Tex. 2008). Written notice. When written notice is a condition precedent in a contract, there must be writing in some form to achieve substantial compliance with the notice requirement. See James Construction Group, L.L.C. v. Westlake Chemical Corp. , 650 S.W.3d 392, 405 (Tex. 2022). Waiver of a condition precedent. When a claimant’s cause of action depends on the waiver of a condition precedent, a separate jury question on waiver should be sub mitted to the jury. See Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P. , 593 S.W.3d 732, 741 (Tex. 2020). QUESTION ______ Did Don Davis waive the [ describe condition precedent ]? Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.

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