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§ 1060. In general. If the contract of sale is not for any cause avoided it must be performed by both parties. It remains next to consider this subject of performance, and for the present purpose it may, perhaps, be profitably considered under three heads: I. When performance is due. II. What will excuse performance; and III. What constitutes performance.

I.

WHEN PERFORMANCE IS DUE.

1

§ 1061. How this question is determined. The question when performance of the contract by either party is due, is one which presents a variety of aspects. It may be that the contract is so explicit upon the subject as to leave no room for doubt, and where the parties make their meaning clear they may make any lawful arrangement which pleases them. Thus, for example, though payment is usually to be contemporaneous with or subsequent to the delivery of the goods, the parties may stipulate for payment in advance.

§ 1062. When contract silent, circumstances must determine.— Where, however, the contract is silent, then the question must be determined by the evident intention of the parties as it can be gathered from their acts and the surrounding cir

cumstances. Many illustrations have already been seen in various connections. Thus, where the contract is silent, it has been seen that payment and delivery are to be deemed concurrent acts, and neither party is bound to do his part, unless the other is contemporaneously ready to perform on his side. But the cases are perhaps more numerous wherein the seller is to take the initiative. Thus, where the seller is to do something to or with the goods before delivery or before the title passes, there can ordinarily be no occasion for the buyer to do anything until the seller has performed.

§ 1063. —. So where the contract is executory, and the seller is to appropriate goods to it, or is to send the goods by carrier, and the like, the same result would ensue. So where the seller is to manufacture the goods, the production of them, and notice of that fact to the buyer, must usually precede any duty of action on the part of the latter. And so, where goods are to be supplied of a certain kind, at a certain place or time in a given amount, all these things are conditions precedent to the buyer's liability. Other illustrations will readily suggest themselves.

§ 1064. Distinguishing between condition precedent and mere agreement.- The difficulty constantly presenting itself is to distinguish between those undertakings which the parties have intended to make conditions precedent, and those independent stipulations whose non-performance will simply give rise to an action for damages. If the given undertaking is a condition precedent, the party who is to perform it must do so before he can call upon the other to perform, and his non-performance will justify the latter in repudiating the whole contract. If, on the other hand, it is an independent stipulation or a mere warranty, its performance is not necessarily a condition precedent, and its non-performance gives rise to an action for damages merely without terminating the entire contract.

§ 1065. The parties may by clear declaration make that a condition precedent which the law would not otherwise so regard; or they may treat that as subsidiary which the law would otherwise regard as of primary importance. As stated by Blackburn, J., "Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and if they sufficiently express such an intention, it will not be a condition precedent."1

§ 1066. By whom determined. Where the contract is in writing or the facts are not disputed, the question whether a given stipulation was a condition precedent is usually for the court; but in other cases the intention of the parties, under the facts and circumstances of the cases, is a question for the jury.

1067. Rules for determining.— Numerous attempts have been made to frame rules to aid in determining the intention of the parties. Mr. Benjamin' has stated them thus:

"1. Where a day is appointed for doing any act, and the day is to happen or may happen before the promise by the other party is to be performed, the latter may bring action before performance, which is not a condition precedent: aliter, if the day fixed is to happen after the performance, for then the performance is deemed to be a condition precedent.

"2. When a covenant or promise goes only to part of the consideration, and a breach of it may be paid for in damages, it is an independent covenant, not a condition.

"3. Where the mutual promises go to the whole consideration on both sides, they are mutual conditions precedent, formerly called 'dependent conditions.'

"4. Where each party is to do an act at the same time as the

1 In Bettini v. Gye (1876), 1 Q. B. Div. 183. 2 Benjamin on Sale, § 562.

other as where goods in a sale for cash are to be delivered by the vendor, and the price to be paid by the buyer,- these are concurrent conditions, and neither party can maintain an action for breach of contract without averring that he performed or offered to perform what he himself was bound to do.

"5. Where from a consideration of the whole instrument it is clear that the one party relied upon his remedy, and not upon the performance of the condition by the other, such performance is not a condition precedent. But if the intention was to rely on the performance of the promise, and not on the remedy, the performance is a condition precedent."

§ 1068.. Rules of this sort, however, prove often of little value, and it is always to be remembered that they are designed to be mere aids in discovering intention and not fixed rules to control it. The rule must, therefore, always give way to clear evidence of a contrary intention; and, after all that can be said, the final test is, What did these parties intend in this case?

II.

WHAT WILL EXCUSE PERFORMANCE.

§ 1069. In general.- The excuses for performance which may arise are, of course, exceedingly numerous; but those most likely to occur may in general be grouped under the following heads:

1. That performance has been waived.

2. That the other party is in default.

3. That the other party has renounced the contract.

4. That the buyer has become insolvent.

5. That the other party is unable to perform.

6. That the other party has disabled himself to perform.

7. That performance has become impossible.

8. That the other party has prevented performance.

1. Waiver of Performance.

§ 1070. Party entitled may waive performance.

The con

tract of sale being composed of mutual obligations inuring to