California Civil Jury Instructions (CACI)

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 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

Directions for Use

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

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].)
  • “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 of a condition is a question of fact and not of law. (Moss v. Minor Properties, Inc. (1968) 262 Cal.App.2d 847, 857 [69 Cal.Rptr. 341].)
  • 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