or the defendant to set up the lapse of the year； that would be due to the circumstance that the order of pleading does not require a plaintiff to meet all possible defences； and to set out a case unanswerable except by denial。 The point at which the law calls on the defendant for an answer varies ＇318＇ in different cases。 Sometimes it would seem to be governed simply by convenience of proof； requiring the party who has the affirmative to plead and prove it。 Sometimes there seems to be a reference to the usual course of events； and matters belong to the defence because they are only exceptionally true。
The most logical distinction would be between conditions which must be satisfied before a promise can be broken； and those which； like the last； discharge the liability after a breach has occurred。 /1/ But this is of the slightest possible importance； and it may be doubted whether another case like the last could be found。
It is much more important to mark the distinction between a stipulation which only has the effect of confining a promise to certain cases； and a condition properly so called。 Every condition； it is true； has this effect upon the promise to which it is attached； so that； whatever the rule of pleading may be； /2/ a promise is as truly kept and performed by doing nothing where the condition of the stipulated act has been broken； as it would have been by doing the act if the condition had been fulfilled。 But if this were all； every clause in a contract which showed what the promisor did not promise would be a condition； and the word would be worse than useless。 The characteristic feature is quite different。
A condition properly so called is an event； the happening of which authorizes the person in whose favor the condition is reserved to treat the contract as if it had not been made；to avoid it； as is commonly said；that is； to insist on both parties being restored to the position in ＇319＇ which they stood before the contract was made。 When a condition operates as such； it lets in an outside force to destroy the existing state of things。 For although its existence is due to consent of parties； its operation depends on the choice of one of them。 When a condition is broken； the person entitled to insist on it may do so if he chooses； but he may； if he prefers； elect to keep the contract on foot。 He gets his right to avoid it from the agreement； but the avoidance comes from him。
Hence it is important to distinguish those stipulations which have this extreme effect from those which only interpret the extent of a promise； or define the events to which it applies。 And as it has just been shown that a condition need not be insisted on as such； we must further distinguish between its operation by way of avoidance； which is peculiar to it； and its incidental working by way of interpretation and definition； in common with other clauses not conditions。
This is best illustrated by taking a bilateral contract between A and B； where A's undertaking is conditional on B's doing what he promises to do； and where； after A has got a certain distance in his task； B breaks his half of the bargain。 For instance； A is employed as a clerk by B； and is wrongfully dismissed in the middle of a quarter。 In favor of A； the contract is conditional on B's keeping his agreement to employ him。 Whether A insists on the condition or not； he is not bound to do any more。 /1/ So far； the condition works simply by way of definition。 It establishes that A has not promised to act in the case which has happened。 But besides this； for which a condition ＇320＇ was not necessary； A may take his choice between two courses。 In the first place； he may elect to avoid the contract。 In that case the parties stand as if no contract had been made； and A； having done work for B which was understood not to be gratuitous； and for which no rate of compensation has been fixed； can recover what the jury think his services were reasonably worth。 The contract no longer determines the quid pro quo。 But as an alternative course A may stand by the contract if he prefers to do so； and sue B for breaking it。 In that case he can recover as part of his damages pay at the contract rate for what he had done； as well as compensation for his loss of opportunity to finish it。 But the points which are material for the present discussion are； that these two remedies are mutually exclusive； /1/ one supposing the contract to be relied on； the other that it is set aside； but that A's stopping work and doing no more after B's breach is equally consistent with either choice； and has in fact nothing to do with the matter。
One word should be added to avoid misapprehension。 When it is said that A has done all that he promised to do in the case which has happened； it is not meant that he is necessarily entitled to the same compensation as if he had done the larger amount of work。 B's promise in the case supposed was to pay so much a quarter for services； and although the consideration of the promise was the promise by A to perform them； the scope of it was limited to the case of their being performed in fact。 Hence A could not simply wait till the end of his term； and then recover the full amount which he would have had if the employment had continued。 Nor is he any more entitled to do so from ＇321＇ the fact that it was B's fault that the services were not rendered。 B's answer to any such claim is perfect。 He is only liable upon a promise； and he in his turn only promised to pay in a case which has not happened。 He did promise to employ； however； and for not doing that he is liable in damages。
One or two more illustrations will be useful。 A promises to deliver； and B promises to accept and pay for； certain goods at a certain time and place。 When the time comes； neither party is on hand。 Neither would be liable to an action； and； according to what has been said； each has done all that he promised to do in the event which has happened； to wit； nothing。 It might be objected that； if A has done all that he is bound to do； he ought to be able to sue B； since performance or readiness to perform was all that was necessary to give him that right； and conversely the same might be said of B。 On the other hand； considering either B or A as defendant； the same facts would be a complete defence。 The puzzle is largely one of words。
A and B have； it is true； each performed all that they promised to do at the present stage； because they each only promised to act in the event of the other being ready and willing to act at the same time。 But the readiness and willingness； although not necessary to the performance of either promise； and therefore not a duty； was necessary in order to present a case to which the promise of action on the other side would apply。 Hence； although A and B have each performed their own promise； they have not performed the condition to their right of demanding more from the other side。 The performance of that condition is purely optional until one side has brought it within the ＇322＇ scope of the other's undertaking by performing it himself。 But it is performance in the latter sense； that is； the satisfying of all conditions； as well as the keeping of his own promises； which is necessary to give A or B a right of action。
Conditions may be created by the very words of a contract。 Of such cases there is nothing to be said； for parties may agree to what they choose。 But they may also be held to arise by construction； where no provision is made in terms for rescinding or avoiding the contract in any case。 The nature of the conditions which the law thus reads in needs explanation。 It may be said； in a general way； that they are directed to the existence of the manifest grounds for making the bargain on the side of the rescinding party； or the accomplishment of its manifest objects。 But that is not enough。 Generally speaking； the disappointment must be caused by the wrong…doing of the person on the other side； and the most obvious cases of such wrong…doing are fraud and misrepresentation； or failure to perform his own part of the contract。
Fraud and misrepresentation thus need to be considered once more in this connection。 I take the latter first。 In dealing with it the first question which arises is whether the representation is； or is not； part of the contract。 If the contract is in writing and the representation is set out on the face of the paper； it may be material or immaterial； but the effect of its untruth will be determined on much the same principles as govern the failure to perform a promise on the same side。 If the contract is made by word of mouth； there may be a large latitude in connecting words of representation with later words of promise； but when they are determined to be a part of the contract ＇323＇； the same principles apply as if the whole were in writing。
The question now before us is the effect of a misrepresentation which leads to； but is not a part of； the contract。 Suppose that the contract is in writing； but does not contain it； does such a previous misrepresentation authorize rescission in any case？ and if so； does it in any case except where it goes to the height of fraud？ The promisor might say； It does not matter to me whether you knew that your representation was false or not； the only thing I am concerned with is its truth。 If it is untrue； I suffer equally whether you knew it to be so or not。 But it has been shown； in an earlier Lecture； that the law does not go on the principle that a man is answerable for all the consequences of all his acts。 An act is indifferent in itself。 It receives its character from the concomitant facts known to the actor at the time。 If a man states a thing reasonably believing that he is speaking from knowledge； it is contrary to the analogies of the law to throw the peril of the truth upon him unless he agrees to assume that peril； and he did not do so in the case supposed； as the representation was not made part of the contract。
It is very different when there is fraud。 Fraud may as well lead to the making of a contract by a statement outside the contract as by one contained in it。 But the law would hold the contract not less conditional on good faith in one case than in the other。
To illustrate； we may take a