Uncertainties and certainties in conditions

The legal concept of conditions refers to the satisfaction of something affecting a right or obligation. If the condition relates to something that exists (but is yet unknown to the parties) it touches on the legal concept of mistake. That’s what I briefly address in this blog.

The DCFR on conditions (see a previous blog – click here) requires that a condition refers to a future or uncertain fact or event. This distinguishes conditions from the legal concept of mistake (Irrtum, erreur, dwaling). The concept of mistake implies that an agreement, entered into on the basis of an incorrect assumption, is voidable (or otherwise subject to termination) if the agreement had not been entered into but for that assumption being incorrect (subject to tests of reasonableness and proportionality of termination). To include a condition that refers to an unknown but existent fact or event (or to a fact or event that is uncertain for the parties but certain for others) is therefore not so much a question of conditionality of the agreement but rather an agreement between the parties that the referenced fact or event is important enough to trigger a termination. Nevertheless, if a straightforward condition is satisfied but for some apparently insignificant facts or events, the rights or obligations that are the subject of the condition will not come into force.

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