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The history of conditions in the English law of contract


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Peek, David Harvey 1976 , 'The history of conditions in the English law of contract', Coursework Master thesis, University of Tasmania.

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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.

Item Type: Thesis - Coursework Master
Authors/Creators:Peek, David Harvey
Keywords: Contracts
Copyright Holders: The Author
Copyright Information:

Copyright 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).

Additional Information:

Thesis (LL.M.)--University of Tasmania, 1976. Bibliography: l. 205-208.

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