Keith Thompson wrote: [...]
Consider a license that says:
You may copy, make derivative works, and distribute those works
that are based on the covered source code provided that you
first compute to the last decimal place the value of pi.
The condition is not illegal, merely impossible. I'd say that
the above is equivalent to:
You may not copy, make derivative works, or distribute those
works that are based on the covered source code.
"A condition in a contract, the fulfillment of which is
impossible or unlawful, within the meaning of the Article on the
Object of Contracts, or which is repugnant to the nature of the
interest created by the contract, is void."
“Under the law of contracts, parties may expressly agree that a
right or duty is conditional upon the occurrence or nonoccurrence
of an act or event.” Platt Pacific, Inc. v. Andelson, 6 Cal.4th
307, 313 (1993). A condition precedent is either an act of a
party that must be performed or an uncertain event that must
happen before the contractual right accrues or the contractual
duty arises. Cal. Civ. Code § 1436; Platt Pacific, 6 Cal.4th at
313. Generally, if a condition precedent “is not fulfilled, the
right to enforce the contract does not evolve.” Kadner v.
Shields, 20 Cal.App.3d 251, 258 (1971); see also Cal. Civ. Code §
1436; Bennett v. Carlen, 213 Cal.App.2d 307, 311 (1963).
“Performance of a duty subject to a condition cannot become due
unless the condition occurs or its non-occurrence is excused.”
R.J. Kuhl Corp. v. Sullivan, 13 Cal.App.4th 1589, 1601 (1993).
The “nonoccurrence of a condition precedent may be excused for a
number of legally recognized reasons.” Platt Pacific, 6 Cal.4th
at 314. Performance of a condition precedent may be excused inter
alia when the condition is waived, performance of the condition
is unlawful or impossible, or the other party prevents or makes
impossible the performance of the condition. See Cal. Civ. Code §
1441; Jacobs v. Tenneco West, Inc., 186 Cal.App.3d 1413, 1418
(1986); Sosin v. Richardson, 210 Cal.App.2d 258, 264 (1962); BAJI
California Jury Instructions – Civil § 10.81 (Spring 2007 ed.).
“The nonoccurrence of a condition may be excused by prevention or
hinderance of its occurrence through a breach of the duty of good
faith and fair dealing.” R.J. Kuhl, 13 Cal.App.4th at 1601.
Orlando has sufficiently pled a cause of action for breach of
contract. The Court will again assume that Paragraph 2 and
Paragraph 9 contain conditions precedent.5 Defendants’s motion is
largely based on the premise that Orlando must allege that these
conditions have been performed. However, the nonoccurrence of a
condition precedent may be excused and the contract enforced
under certain circumstances. See Cal. Civ. Code § 1441; Platt
Pacific, 6 Cal.4th at 314; R.J. Kuhl, 13 Cal.App.4th at 1601;
Careau & Co., 222 Cal.App.3d at 1389-91; Jacobs, 186 Cal.App.3d
at 1418; Sosin, 210 Cal.App.2d at 264; BAJI California Jury
Instructions – Civil § 10.81 (Spring 2007 ed.). Impossibility and
conduct by the defendant may excuse the failure of a condition
precedent. See Cal. Civ. Code § 1441; R.J. Kuhl, 13 Cal.App.4th
at 1601; Jacobs, 186 Cal.App.3d at 1418; BAJI § 10.81. With
respect to Paragraph 2, Orlando has argued that Defendants and
Alarm One acted in bad faith by failing to make good faith
efforts to obtain a $200,000 note from lenders. See FAC at ¶ 14.
This allegation sufficiently pleads an excuse to the
nonoccurrence of Paragraph 2. With respect to Paragraph 9,
Orlando pleads that the condition is impossible because there
were actually no third party creditors who were legally required
to give consent (which was known to Defendants and Alarm One),
thus, making it impossible to obtain the consent. See FAC at ¶
16. Further, Orlando pleads that Defendants and Alarm One made no
good faith efforts to obtain consent from necessary third party
creditors if such creditors actually do exist. See FAC at ¶ 17.
These allegations sufficiently plead an excuse to the
nonoccurrence of Paragraph 9. That there is tension between
Orlando’s theories regarding necessary third party creditors does
not affect the FAC since inconsistent and/or alternative pleading
is permissible in federal court. See Fed. R. Civ. Pro. 8(e)(2);
Oki Am., Inc. v. Microtech Int’l, Inc., 872 F.2d 312, 314 (9th
Cir. 1989); Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 463
(9th Cir. 1977).
Defendants’s arguments regarding a possible lack of mutual assent
and the application of California Civil Code § 1441 if the third
party creditors do not actually exist is inadequately developed
and unpersuasive. First, by the plain language of California
Civil Code § 1441, that section voids impossible conditions
precedent; it does not void entire contracts. See Cal. Civ. Code
§ 1441; Carlisle v. Lady, 109 Cal.App. 567, 571-72 (1930)."