Condition Precedent in UK Law

Learned counsel for the buyers invited your Lordships to read clause 21 as if the first sentence were linked with the second by such words as "provided that"�an argument which must surely support the view that without such words, the second sentence does not attain condition status.

If the Engineer's decision is not binding, it can be reviewed by an arbitrator (if there is an arbitration clause which permits such a review) or by the court.

Once one approaches the analysis on the basis that, under Section 2(a)(iii), one is only looking at the payment obligation, rather than the debt obligation, the whole machinery makes sense. Thus, the wording of Section 2(a)(iii) makes it clear that the payment obligation is subject to the condition precedent that no Event of Default or Potential Event of Default has occurred "… and is continuing".

By parity of reasoning with my conclusions set out above on Issues 2 and 5(iii), it seems to me that Clauses 7 and 8 of the FFABA 2007 Terms and Section 2(a)(i) and (iii) are “one time” provisions for the calculation and assessment at the end of the Contract Month of whether a sum is owed. There is nothing in the wording of the provisions of the contract to suggest that if the condition precedent is fulfilled at some later date, some obligation to pay then springs up.

Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. But it is inherent in the scheme of the Act that an appropriate public law decision of the housing authority is a condition precedent to the establishment of the private law duty.

Nor am I persuaded that Section 9(c) has only the limited purpose identified by Mr Zacaroli. The deliberate use of “termination” with a small rather than capital “t” suggests that Section 9(c) is all about termination by effluxion of time (i.e. on the last payment date referred to under Section 2(a)(i)). The exclusion of Section 6(c)(ii) follows naturally from the comprehensive provisions about payment obligations triggered by Early Termination.

I agree with Mr. Pollock that is important to keep promissory and contingent conditions separate but in my opinion there is a common factor. If the provision in an agreement is of fundamental importance then the result either of a failure to perform it (if it is promissory) or of the event not happening or the act not being done (if it is a contingent condition or a condition precedent or a condition subsequent) may be that the contract either never comes into being or terminates.