Condition Subsequent in UK Law

My Lords, it is, in my view, most consistent with the achievement of the purpose of the 1971 Act that the time at which to ascertain whether a choice of forum clause will have an effect that is proscribed by Article III rule 8 should be when the condition subsequent is fulfilled and the carrier seeks to bring the clause into operation and to rely upon it.

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.

But when I say potentially liable, there is a sharp distinction between steps required to enforce a valid claim under a policy in force at the time of the loss, and a claim which never was valid, and never could be enforced. Thus if B has a good defence to the assured's claim on the basis of misrepresentation or non-disclosure, there is no double insurance. Since the effect of the defence is that the contract is avoided ab initio, it is as if B had never been on risk at all.

In my opinion, on construction, the words "of Jewish parentage" refer to race. The testator has given no information or clue as to what percentage or proportion of Jewish blood in the husband will satisfy the requirement that he should be of Jewish parentage. It is this uncertainty of degree which prevents the divesting event from being seen precisely and distinctly from the beginning, and which makes this condition void for uncertainty.

If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was.

It comprises mutual promises whereby each party assumes an obligation towards the other party: the vendor to transfer to the purchaser the property the subject matter of the sale, the purchaser to accept the transfer from and to pay the price to the vendor.

But it is not, in my judgment, necessary that the note or memorandum should acknowledge the existence of a contract.