California Civil Jury Instructions (CACI) (2017)

323. Waiver of Condition Precedent

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323.Waiver of Condition Precedent
[Name of plaintiff] and [name of defendant] agreed in their contract that
[name of defendant] would not have to [insert duty] unless [insert
condition precedent]. That condition did not occur. Therefore, [name of
defendant] contends that [he/she/it] did not have to [insert duty].
To overcome this contention, [name of plaintiff] must prove by clear and
convincing evidence that [name of defendant], by words or conduct, gave
up [his/her/its] right to require [insert condition precedent] before having
to [insert duty].
New September 2003; Revised December 2013
Directions for Use
For an instruction on waiver as an affirmative defense, see CACI No. 336,
Affırmative Defense—Waiver.
Sources and Authority
• “Ordinarily, a plaintiff cannot recover on a contract without alleging and
proving performance or prevention or waiver of performance of conditions
precedent and willingness and ability to perform conditions concurrent.”
(Roseleaf Corp. v. Radis (1953) 122 Cal.App.2d 196, 206 [264 P.2d 964].)
• “ ‘[C]ase law is clear that “ ‘[w]aiver is the intentional relinquishment of a
known right after knowledge of the facts.’ [Citations.] The burden . . . is on the
party claiming a waiver of a right to prove it by clear and convincing evidence
that does not leave the matter to speculation, and “doubtful cases will be
decided against a waiver’ [citation].” [Citations.] The waiver may be either
express, based on the words of the waiving party, or implied, based on conduct
indicating an intent to relinquish the right.” (Stephens & Stephens XII, LLC v.
Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th 1131, 1148 [180 Cal.Rptr.3d
• “All case law on the subject of waiver is unequivocal: ‘ “Waiver always rests
upon intent.’ ” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout
III, Ltd. (1994) 30 Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515] [plaintiff’s claim
that defendant waived occurrence of conditions must be proved by clear and
convincing evidence].)
• “A condition is waived when a promisor by his words or conduct justifies the
promisee in believing that a conditional promise will be performed despite the
failure to perform the condition, and the promisee relies upon the promisor’s
manifestations to his substantial detriment.” (Sosin v. Richardson (1962) 210
Cal.App.2d 258, 264 [26 Cal.Rptr. 610].)
• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
no disputed facts and only one reasonable inference may be drawn, the issue
can be determined as a matter of law.’ ” (DuBeck v. California Physicians’
Service (2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• Section 84 of the Restatement Second of Contracts provides:
(1) Except as stated in Subsection (2), a promise to perform all or
part of a conditional duty under an antecedent contract in spite of
the non-occurrence of the condition is binding, whether the promise
is made before or after the time for the condition to occur, unless
(a) occurrence of the condition was a material part of the
agreed exchange for the performance of the duty and the
promisee was under no duty that it occur; or
(b) uncertainty of the occurrence of the condition was an
element of the risk assumed by the promisor.
(2) If such a promise is made before the time for the occurrence of
the condition has expired and the condition is within the control of
the promisee or a beneficiary, the promisor can make his duty again
subject to the condition by notifying the promisee or beneficiary of
his intention to do so if
(a) the notification is received while there is still a reasonable
time to cause the condition to occur under the antecedent terms
or an extension given by the promisor; and
(b) reinstatement of the requirement of the condition is not
unjust because of a material change of position by the
promisee or beneficiary; and
(c) the promise is not binding apart from the rule stated in
Subsection (1).
Secondary Sources
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.48
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.44
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.231 (Matthew Bender)