The Performance of Contracts A SUMMARY OF CONDITIONS IN CONTRACTS IMPOSSIBILITY OF PERFORMANCE BY GEORGE P. COSTIGAN, JR. Second Edition BERKELEY CALIFORNIA LAW REVIEW 1927 L17592 JUL 3 0 1940 COPYRIGHT, 1911 BY GEORGE P. COSTIGAN, Jr. COPYRIGHT, 1927 BY GEORGE P. COSTIGAN, JR. PREFACE This little pamphlet was first published at a time when it seemed important to give law students special assistance in comprehending a part of the law of contracts which for one reason or another they were finding too obscure. It sought to state with greater accuracy matters treated in an article which appeared in the Columbia Law Review for March, 1907, and to add a brief summary of the law of impossibility of performance of contracts. While Professor Williston's learned treatise on Contracts and other books have diminished somewhat the necessity for this pamphlet, it still seems to serve a useful and proper purpose and to merit a second edition. The aim of the pamphlet, as the preface to the first edition suggested, was and is to be of use to those students only who have read with care the important cases. For that reason, a Table of Cases and an Index have been omitted. Students will gain by making these for themselves. The pamphlet does not seek to be a treatise. It covers only a part of the field of its title-the title does not include specific performance in equity-and is primarily a student's manual. Only a brief summary of the law relating to the performance of contracts, with the minimum of citation of authorities, has been attempted. When Professor Langdell taught Contracts at the Harvard Law School, he privately printed for the use of his classes certain "Rules on Conditions in Contracts." Those "Rules" (which are found in Appendix B, post) constituted the inspiration and the foundation of this summary. The increasing importance of the field of the performance of contracts with which rules on conditions have to do seems to justify a short treatment, chiefly in the form of "rules" or numbered paragraphs, which shall emphasize the essentially equitable nature of conditions implied by law-and by "equitable nature" is meant that they are based on a determination of what is fairand the difference between them and express and implied-in-fact conditions, both of which are based on the expressed or necessarily or reasonably inferred actual intent of the parties. In framing the "rules" or numbered paragraphs here offered, the author has made an effort to give credit to Professor Langdell wherever possible, and in a number of instances Professor Langdell's wording, which is characteristically exact and illuminating in those cases where his (iii) conclusions can be accepted, has been retained with such modifications as seemed necessary, even though he might not have approved of the modifications. Full credit is also attempted to be given to others and a special and not fully ascertainable indebtedness is acknowledged to Professor Williston, under whose teaching the writer first studied the law of Contracts. January 3, 1927. GEORGE P. COSTIGAN, JR. |