CONDEMNATION1, civil law. A sentence of judgment2 which condemns3 some one to do, to give, or to pay something; or which declares that his claim or pretensions4 are unfounded. This word is also used by common lawyers, though it is more usual to say conviction, both in civil and criminal cases. It is a maxim5 that no man ought to be condemned6 unheard, and without the opportunity of being heard.
CONDICTIO INDEBITI, civil law. When the plaintiff has paid to the defendant7 by mistake what he was not bound to pay either in fact or in law, he may recover it back by an action called condictio indebiti. This action does not lie, 1. if the sum was due ex cequitate, or by a natural obligation; 2. if he who made the payment knew that nothing was due, for qui consulto dat quod non debetat, prcesumitur donare. Vide Quasi contract.
CONDICTION, Lat. condictio. This term is used in the civil law in the same sense as action. Condictio certi, is an action for the recovery of a certain thing, as our action of replevin, condictio incerti, is an action given for the recovery of an uncertain thing. Dig. 12 , 1.
CONDITION, contracts, wills. In its most extended signification, a condition is a clause in a contract or agreement which has for its object to suspend, to rescind8, or to modify the principal obligation; or in case of a will, to suspend, revoke9, or modify the devise or bequest10. 1 Bouv. Inst. n. 730. It ii in fact by itself, in many cases, an agreement; and a sufficient foundation as an agreement in writing, for a bill in equity11, praying for a specific performance. 2 Burr. 826. In pleading, according to the course of the common Iaw, the bond and its condition are to some intents and purposes, regarded as distinct things. 1 Saund. Rep. by Wms. 9 b. Domat has given a definition of a condition, quoted by Hargrave, in these words: "A condition is any portion or agreement which regulates what the parties have a mind should be done, if a case they foresee should come to pass." Co. Litt. 201 a.
2. Conditions sometimes suspend the obligation; as, when it is to have no effect until they are fulfilled; as, if I bind12 myself to pay you one thousand dollars ou condition that the ship Thomas Jefferson shall arrive in the United States from Havre; the contract is suspended until the arrival of the ship.
3. The condition sometimes rescinds13 the contract; as, when I sell you my horse, on condition that he shall be alive on the first day of January, and he dies before that time.
4. A condition may modify the contract; as, if I sell you two thousand bushels of corn, upon condition that my crop shall produce that much, and it produces only fifteen hundred bushels.
5. In a less extended acceptation, but in a true sense, a condition is a future and uncertain event, on the existence or non-existence of which is made to depend, eitther the accomplishment14, the modification15, or the rescission of an obligation or testamentary disposition16.
6. There is a marked difference between a condition and a limitation. When a in is given generally, but the gift may defeated upon the happening of an uncertain event, the latter is called a condition but when it is given to be enjoyed until the event arrives, it is a limitation. See Limitation; Estates. It is not easy to say when a condition will be considered a covenant17 and when not, or when it will be holden to be both. Platt on Cov. 71.
7. Events foreseen by conditions are of three kinds. Some depend on the acts of the persons who deal together, as, if the agreement should provide that a partner should not join another partnership18. Others are independent of the will of the parties, as, if I sell you one thousand bushels of corn,. on condition that my crop shall not be destroyed by a fortuitous event, or act of God. Some depend in part on the contracting parties and partly on the act of God, as, if it be provided that such merchandise shall arrive by a certain day.
8. A condition may be created by inserting the very word condition, or on condition, in the deed or agreement; there are, however, other words that will do so as effectually, as proviso, if, &c. Bac. Ab. Conditions, A.
9. Conditions are of various kinds; 1. as to their form, they are express or implied. This division is of feudal19 origin. 2 Woodes. Lect. 138. 2. As to their object, they are lawful20 or unlawful; 3. as to the time when they are to take effect, they are precedent21 or subsequent; 4. as to their nature, they are possible or impossible 5. as to their operation, they are positive or negative; 6. is to their divisibility, they are copulative or disjunctive; 7. as to their agreement with the contract, they are consistent or repugnant; 8. as to their effect, they are resolutory or suspensive. These will be severally considered.
10. An express condition is one created by express words; as for instance, a condition in a lease that if the tenant22 shall not pay the rent at the day, the lessor may reenter. Litt. 328. Vide Reentry.
11. An implied condition is one created by law, and not by express words; for example, at common law, the tenant for life holds upon the implied condition not to commit waste. Co. Litt. 233, b.
12 . A lawful or legal condition is one made in consonance with the law. This must be understood of the law as existing at the time of making the condition, for no change of the law can change the force of the condition. For example, a conveyance23 was made to the grantee, on condition that he should not aliens until be reached the age of twenty-five years. Before he acquired this age be aliened, and made a second conveyance after he obtained it; the first deed was declared void, and the last valid24. When the condition was imposed, twenty-five was the age of majority in the state; it was afterwards changed to twenty-one. Under these circumstances the condition was held to be binding25. 3 Miss., R. 40.
13. An unlawful or illegal condition is one forbidden by law. Unlawful conditions have for their object, lst. to do something malum in se, or malum prohibitum; 2d. to omit the performance of some duty required by law 3d. to encourage such act or omission26. 1 P. Wms. 189. When the law prohibits, in express terms, the transaction in respect to which the condition is made, and declares it void, such condition is then void; 3 Binn. R. 533; but when it is prohibited, without being declared void, although unlawful, it is not void. 12 S. @ R. 237. Conditions in restraint of marriage are odious27, and are therefore held to the utmost rigor28 and strictness. They are contrary to sound policy, and by the Roman law were all void. 4 Burr. Rep. 2055; 10 Barr. 75, 350; 3 Whart. 575.
14. A condition precedent is one which must be performed before the estate will vest, or before the obligation is to be performed. 2 Dall. R. 317. Whether a condition shall be considered as precedent or subsequent, depends not on the form or arrangement of the words, but on the manifest intention of the parties, on the fair construction of the contract. 2 Fairf. R. 318; 5 Wend. R. 496; 3 Pet, R. 374; 2 John. R. 148; 2 Cain es, R. 352; 12 Mod. 464; 6 Cowen, R. 627 9 Wheat. R. 350; 2 Virg. Cas. 138 14 Mass. R. 453; 1 J. J. Marsh29. R. 591 6 J. J. Marsh. R. 161; 2 Bibb, R. 547 6 Litt. R. 151; 4 Rand. R. 352; 2 Burr. 900
15. A subsequent condition is one which enlarges or defeats an estate or right, already created. A conveyance in fee, reserving a life estate in a part of the land, and made upon condition that the grantee shall pay certain sums of money at divers30 times to several persons, passes the fee upon condition subsequent. 6 Greenl. R. 106. See 1 Burr. 39, 43; 4 Burr. 1940. Sometimes it becomes of great importance to ascertain31 whether the condition is precedent or subsequent. When a precedent condition becomes impossible by the act of God, no estate or right vests; but if the condition is subsequent, the estate or right becomes absolute. Co. Litt. 206, 208; 1 Salk. 170.
16. A possible condition is one which may be performed, and there is nothing in the laws of nature to prevent its performance.
17. An impossible condition is one which cannot be accomplished32 according to the laws of nature; as, to go from the United States to Europe in one day.; such a condition is void. 1 Swift's Dig. 93; 5 Toull. n. 242-247. When a condition becomes impossible by the act of God, it either vests the estate, or does not, as it is precedent or subsequent: when it is the former, no estate vests when the latter, it becomes absolute. Co. Litt. 206, a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the performance of the condition becomes impossible by the act of the party who imposed it, the estate is rendered absolute. 5 Rep. 22; 3 Bro. Parl. Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab. 420; Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10; Dig. 28, 7, 1; Id. 44, 7, 31; Code 6, 25, 1; 6 Toull. n. 486, 686 and the article Impossibility.
18. A positive condition requires that the event contemplated33 shall happen; as, If I marry. Poth. Ob. part 2, c. 3, art. 1, 1. 19. A negative condition requires that the event contemplated shall not happen as If I do not marry. Potb. Ob. n. 200.
20. A copulative condition, is one of several distinct-matters, the whole of which are made precedent to the vesting of an estate or right. In this case the entire condition must be performed, or the estate or right can never arise or take place. 2 Freem. 186. Such a condition differs from a disjunctive condition, which gives to the party the right to perform the one or the other; for, in this case, if one becomes impossible by the act of God, the whole will, in general, be excused. This rule, however, is not without exception. 1 B. & P. 242; Cro. Eliz. 780; 5 Co. 21; 1 Lord Raym. 279. Vide Conjunctive; Disjunctive.
21. A disjunctive condition is one which gives the party to be affected34 by it, the right to perform one or the other of two alternatives.
22. A consistent condition is one which agrees with other parts of the contract.
23. A repugnant condition is one which is contrary to the contract; as, if I grant to you a house and lot in fee, upon condition that you shall not aliene, the condition is repugnant and void, as being inconsistent with the estate granted. Bac. Ab. Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.
24. A resolutory condition in the civil law is one which has for its object, when accomplished the revocation35 of the principal obligation. This condition does not suspend either the existence or the execution of the obligation, it merely obliges the creditor36 to return what he has received.
25. A suspensive condition is one which susends the fulfilment of the obligation until it has been performed; as, if a man bind himself to pay one -hundred dollars, upon condition that the ship Thomas Jefferson shall arrive from Europe. The obligation, in this case, is suspended until the arrival of the ship, when the condition having been performed, the obligation becomes absolute , and it is no longer conditional37. A suspensive condition is in fact a condition precedent.
26. Pothier further divides conditions into potestative, casual and mixed.
27. A potestative condition is that which is in the power of the person in whose favor it is contracted; as, if I engage to give my neighbor a sum of money, in case he outs down a tree which obstructs38 my. prospect39. Poth. Obl. Pt. 2, c. 3, art. 1, 1.
28. A casual condition is one which depends altogether upon chance, and not in the power of the creditor, as the following: if I have children; if I have no children; if such a vessel40 arrives in the United States, &c. Poth. Ob. n. 201.
29. A mixed condition is one which depends on the will of the creditor and of a third person; as, if you marry my cousin. Poth. Ob. n. 201. Vide, generally, Bouv. Inst. Index, h. t.
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