It’s up to the drafter of the blessed document really. I mean, honestly. When writing an instrument that is meant to be binding upon the parties, members of the legal profession have to be extra-careful of what they write and how they write it. They have to be certain that what they have written reflects the intention of the parties, because in those rare instances when things go wrong (!!) and that document needs to be used in a Court of law, that document might not end up being worth the paper it’s written on.
Now I’m not saying that this was the case in Vinco Limited vs. Cini Jane et, decided by the First Hall of the Civil Court on the 21.01.2019, and I’m not saying it wasn’t. I mean, this obviously so could have happened to anyone. You decide.
So, what happened was that basically Jane and her friend Mary sold two parcels of land to the plaintiff company for the princely sum of €230,000 but were only paid €73,000 on contract. The balance had to be paid later on. The contract contained a clause stipulating that the rock face underlying the land should not exceed 18 courses below the pavement level. The company discovered that, alas, the rock face was indeed much lower than those blessed 18 courses and would later argue that this was a suspensive condition which would suspend their obligation to pay the remaining balance.
Well courses for horses, the Court said. The Court dismissed Vinco’s attempt at cancelling the ladies’ enforcement of their contract after it examined the clause in question. The Court decided that this was not a suspensive condition at all, since the clause did not provide for a remedy or a consequence in the event that it would eventually discover that the depth of the rock face exceeded that agreed upon. In truth Vinco had another remedy available to it, but it certainly wasn’t this one. But this wasn’t the point.
The point is, if you want a condition in a contract to be respected you must make sure that something happens to the other party if it isn’t!