California Civil Jury Instructions (CACI)

322. Occurrence of Agreed Condition Precedent

The parties agreed in their contract that [name of defendant] would not have to [insert duty] unless [insert condition precedent]. [Name of defendant] contends that this condition did not occur and that [he/she/it] did not have to [insert duty]. To overcome this contention, [name of plaintiff] must prove that [insert condition precedent].

If [name of plaintiff] does not prove that [insert condition precedent], then [name of defendant] was not required to [insert duty].

New September 2003

Directions for Use

Do not give this instruction unless the defendant has testified or offered other evidence in support of his or her contention.

If both the existence and the occurrence of a condition precedent are contested, use CACI No. 321, Existence of Condition Precedent Disputed.

Sources and Authority

  • Civil Code section 1434 provides: “An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event.”
  • Civil Code section 1436 provides: “A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed.”
  • “Under the law of contracts, parties may expressly agree that a right or duty is conditional upon the occurrence or nonoccurrence of an act or event.” (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313 [24 Cal.Rptr.2d 597, 862 P.2d 158].)
  • “A condition is a fact, the happening or nonhappening of which creates (condition precedent) or extinguishes (condition subsequent) a duty on the part of the promisor. If the promisor makes an absolute or unconditional promise, he is bound to perform when the time arrives; but if he makes a conditional promise, he binds himself to perform only if the condition precedent occurs, or is relieved from the duty if the condition subsequent occurs. The condition may be the happening of an event, or an act of a party.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 776.)
  • Section 224 of the Restatement Second of Contracts provides: “A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.”
  • Section 225 of the Restatement Second of Contracts provides:

    (1) Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused.

    (2) Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur.

    (3) Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur.

  • “[W]here defendant’s duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove the event transpired.” (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
  • “When a contract establishes the satisfaction of one of the parties as a condition precedent, two tests are recognized: (1) The party is bound to make his decision according to the judicially discerned, objective standard of a reasonable person; (2) the party may make a subjective decision regardless of reasonableness, controlled only by the need for good faith. Which test applies in a given transaction is a matter of actual or judicially inferred intent. Absent an explicit contractual direction or one implied from the subject matter, the law prefers the objective, i.e., reasonable person, test.” (Guntert v. City of Stockton (1974) 43 Cal.App.3d 203, 209 [117 Cal.Rptr. 601], internal citations omitted.)

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 776–791

13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.44, 140.101 (Matthew Bender)

5 California Points and Authorities, Ch. 50, Contracts, §§ 50.20–50.22 (Matthew Bender)

27 California Legal Forms, Ch. 75, Formation of Contracts and Standard Contractual Provisions, § 75.230 (Matthew Bender)

2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or Defending Action for Breach of Contract, 22.19, 22.66