whole_PeekDavidHarvey1976_thesis.pdf (6.51 MB)
The history of conditions in the English law of contract
thesisposted on 2023-05-27, 18:33 authored by Peek, David Harvey
The purpose of this thesis is to facilitate investigation and discussion of an area of contract law which is of great importance and in equally great confusion. The area concerns the concept of a condition and certain related problems in the performance of a contract. This field is vast and is discussed at length by all the modern contract writers. It is unnecessary to cite instances of modern problems or to refer to the many eloquent observations as to the intractability and plain awkwardness of the area, because my purpose is not to investigate the many difficult modern problems of performance but rather to facilitate their investigation and analysis. The treatment is purely historical, covering only the period up to the end of the eighteenth century. I am concerned not to tackle the ideas of 11 breach going to the root of the contract 11 , \failure of consideration\" \"fundamental breach\" and so on but rather to examine and to clarify the older and more basic concepts upon which these relatively modern ideas depend. The province of this work then is to examine the early concept of the condition and to trace its development from an early stage to that time about the end of the eighteenth century when the modern dichotomy between condition and warranty and its countless attendant problems started to evolve. The basic idea of condition and the dichotomy between condition and covenant will be traced from their origins in real property law through an evolutionary process in contract law up to the date mentioned. The changes in the nature of the condition precedent thus brought about the story of dependency and independency of covenants and the evolution of concurrent performance (concurrent conditions) are intertwined and will all be examined. No treatment of the development of many problems of performance through the nineteenth and twentieth centuries has yet been produced. The field is so wide the interconnected factors and trains of development interlinked in such complexity that perhaps it never will be. And yet the attraction of this area of the law is that while so much remains far from settled at the present day the materials on which a settlement may be based are right at hand for the principles of discharge and performance of contract have been discussed in the courts for hundreds of years. It is my belief that one of the major causes of the confusion which exists today is a failure correctly to analyze certain ancient and basic concepts of the law and to perceive the changes sometimes subtle sometimes marked that these concepts have undergone over the years. Therefore this thesis will attempt to make some analysis of the origins and evolution of certain basic concepts an understanding of which is vital to an understanding of the modern law."
Rights statementCopyright the Author - The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from copyright owner(s). Thesis (LL.M.)--University of Tasmania, 1976. Bibliography: l. 205-208.