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WPI 302.02 Conditions Precedent or Conditions Concurrent

6A WAPRAC WPI 302.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 302.02 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XIII. Contracts

Chapter 302. Contracts—Performance and Breach

WPI 302.02 Conditions Precedent or Conditions Concurrent

A party seeking to enforce the terms of a contract, or to recover damages for the breach of a contract, has the burden of proving that all conditions precedent or conditions concurrent to the other party's duty to perform under the contract have been fulfilled or that such fulfillment was excused.

(Name of party)claims that the following condition[s] [precedent] [and] [concurrent] were not timely fulfilled:

(State here the alleged condition precedent or concurrent to the party's obligation to perform that the party claims was not fulfilled.)

In order to recover,(name of party)has the burden of proving, by a preponderance of the evidence, that all conditions [precedent] [and] [concurrent] were fulfilled or that fulfillment of such conditions was excused. [A condition is considered fulfilled if there is substantial performance. Substantial performance means performance in good faith and in compliance with the contract, except for minor and relatively unimportant deviations.]

NOTE ON USE

Use this instruction when the court has determined that the enforcing party's performance is a condition precedent or concurrent to the other party's obligations under the contract, or when there is any other condition precedent or concurrent to the non-enforcing party's obligation to perform.

If the non-enforcing party asserts that the enforcing party failed to fulfill a condition concurrent by being in material breach of the contract, combine this instruction with WPI 302.03 (Material Breach—Definition).

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

If the party seeking enforcement of the contract alleges that its duty of performance was excused by the anticipatory breach of the other party, combine this instruction with WPI 302.04 (Excuse of Performance—Anticipatory Breach). If the party seeking enforcement alleges that its duty of performance was otherwise excused, see WPI 302.06 (Excuse of Performance—Estoppel) and instructions following.

Use the bracketed sentences if the condition is claimed to have been satisfied by substantial performance.

COMMENT

Introduction. Conditions precedent may be express, implied in fact, or constructive. Colorado Structures, Inc. v. Ins. Co. of the W., 161 Wn.2d 577, 167 P.3d 1125 (2007) (general contractor brought action against surety to recover on subcontractor's performance bond); Ross v. Harding, 64 Wn.2d 231, 236, 391 P.2d 526 (1964) (citing 5 Williston, Contracts § 668, at 152 (3d ed.); 3A Corbin, Contracts §§ 631, 632, at 21–22).

“Conditions precedent” are those facts and events, occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available. 3A Corbin, Contracts § 628, p. 16, Partlow v. Mathews, 43 Wn.2d 398, 261 P.2d 394 [1953]. A breach of a “promise” subjects the promisor to liability in damages, but does not necessarily excuse performance on the other side. Nonperformance or nonoccurrence of a “condition” prevents the promisee from acquiring a right, or deprives him of one, but subjects him to no liability. 5 Williston, Contracts (3d ed.) § 665, p. 132.

Ross, 64 Wn.2d at 236.

With regard to an express condition precedent set forth in the contract, “[a]ny words which express, when properly interpreted, the idea that the performance of a promise is dependent on some other event will create a condition. Phrases and words such as ‘on condition,’ ‘provided that,’ ‘so that,’ ‘when,’ ‘while,’ ‘after,’ or ‘as soon as’ are often used.” Ross, 64 Wn.2d at 237; see also Lokan & Assocs., Inc. v. Am. Beef Processing, LLC, 177 Wn.App. 490, 311 P.3d 1285 (2013); Walter Implement, Inc. v. Focht, 107 Wn.2d 553, 730 P.2d 1340 (1987).

Burden of proof. “The party seeking enforcement of the contract has the burden of proving performance of an express condition precedent.” Focht, 107 Wn.2d at 557; see also Wlasiuk v. Whirlpool Corp., 81 Wn.App. 163, 914 P.2d 102 (1996), opinion modified, 932 P.2d 1266. As the Supreme Court has stated:

Proof of performance of an express condition precedent is a burden which must be met by the party who seeks enforcement of the contract. … “A plaintiff, in order to maintain an action on the contract, must have complied with the conditions precedent contained therein. That is to say, a breach by a plaintiff of a material condition precedent relieves a defendant of liability under a contract.”

Ross, 64 Wn.2d at 240–41 (quoting Atkinson v. Thrift Super Markets, Inc., 56 Wn.2d 593, 594, 354 P.2d 709 (1960)); see also State v. Trask, 91 Wn.App. 253, 273–74, 957 P.2d 781 (1998) (a breach by one party does not necessarily excuse the other party from performing under the contract; the issue depends on whether the parties intended the first party's performance to be a condition precedent).

When a party wrongfully repudiates or rescinds a contract, the other party's performance of a condition precedent is excused unless it is proved that the condition precedent would not have been satisfied. The burden of proving this proposition is on the repudiating party. Puget Sound Serv. Corp. v. Bush, 45 Wn.App. 312, 319, 724 P.2d 1127 (1986).

Discharge of duties. When the contract specifies a condition precedent to the obligation to perform, and the nonoccurrence of the condition precedent is not the fault of either party, both parties' contractual duties are discharged. CHG Intern., Inc. v. Robin Lee, Inc., 35 Wn.App. 512, 515, 667 P.2d 1127 (1983).

Since an express condition is a contract term and part of the bargain, literal operation of the condition is normally to be anticipated. The promisee bought a qualified right. He can expect excuse of the condition and relief from his bargain only if the promisor wrongfully interferes with satisfaction of the condition, or waives it, or if the condition is not of importance to the promisor and denial of relief for the promisee would occasion him a serious forfeiture.

Shattuck, Contracts in Washington: 1937–1957: Part III, 34 Wash. L. Rev. 467, 469 (1959). Similarly, if one party's performance is subject to a condition precedent, the nonoccurrence of that condition excuses the promisee's performance. Hadaller v. Port of Chehalis, 97 Wn.App. 750, 757, 986 P.2d 836 (1999).

Substantial performance. “The doctrine of substantial performance is applied in rare instances where only ‘minor and relatively unimportant deviations’ remain to accomplish full contractual performance.” Taylor v. Shigaki, 84 Wn.App. 723, 729, 930 P.2d 340 (1997) (quoting 17A Am.Jur.2d Contracts § 634 (1991)); see also DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice § 10:6 (3d ed.).

The substantial performance doctrine applies to all bilateral contracts for an agreed exchange of performances except for contracts for the sale of goods. The UCC's “perfect tender rule” applies to the latter. See Kunsch, 1A Washington Practice, Methods of Practice ch. 36 (4th ed.). Moreover, while substantial performance triggers the duty of the other party to perform its part of the contract, it does not deprive that party of the right to recover damages for the discrepancy between substantial performance and what was promised in the contract. Fuller v. Rosinski, 79 Wn.2d 719, 723, 488 P.2d 1061 (1971); see also Eastlake Constr. Co., Inc. v. Hess, 102 Wn.2d 30, 686 P.2d 465 (1984) (discussing “substantial performance”).

Conditions concurrent. When the duties of two parties are to be performed simultaneously, as with the exchange of money for property, “[t]he promise of each is conditional upon a tender of performance by the other.” DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice § 8:4 (3d ed.). “If a contract requires performance by both parties, the party claiming nonperformance of the other must first establish as a matter of fact the party's own performance.” Willener v. Sweeting, 107 Wn.2d 388, 392, 730 P.2d 45 (1986).

In a contract for the sale of land, for example, the payment of the purchase price and the delivery of the deed are typically concurrent conditions, and the vendor “may not put the buyer in default until the vendor has offered to perform.” Wallace Real Est. Inv., Inc. v. Groves, 124 Wn.2d 881, 887, 881 P.2d 1010 (1994). In such cases, “[a]n actual tender of performance may be excused when there is a willingness and an ability to perform, and actual performance has been prevented or expressly waived by the party to whom performance is due.” Kane v. Borthwick, 50 Wash. 8, 12, 96 P. 516, 518 (1908), quoted in Carlson v. Leonardo Truck Lines, Inc., 13 Wn.App. 795, 538 P.2d 130 (1975) (holding plaintiff not entitled to sue repudiating seller for breach of contract when plaintiff failed to meet burden of proving it could have obtained the amount required for payment on the date fixed for performance).

Concurrent conditions may be implied. For example, when no time is set in the contract for payment and delivery, and concurrent conditions are presumed to have been intended. See Meeker v. Johnson, 3 Wash. 247, 259, 28 P. 542 (1891); see generally Restatement (Second) of Contracts § 234(1) (1981) (performances that can be performed simultaneously are due simultaneously unless the contract or circumstances indicate to the contrary).

Instruction format. The format of the instruction, calling for a specific condition alleged not to have been fulfilled, is suggested by the rules of pleading: “In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” CR 9(c).

For further discussion of the issues underlying this instruction, see the Comment to WPI 300.02 (Burden of Proof on the Issues—Breach of Contract—No Affirmative Defense) and DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice §§ 8:3, :4, :7 (3d ed.).

[Current as of April 2021.]

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