Express Condition

An express condition occurs when both parties agree that an event, or series of events, must occur before the burden of responsibility to complete the contract arises. For example, let’s say that you have been hired to write some grant proposals for a nonprofit organization. You will need the organization to provide certain information, such as program descriptions and budgets, before you can get to work on crafting a proposal.

You and the organization agreeing on this would constitute an express condition. Express conditions can be either written or oral (although, it does vary from one state to the next as to how much weight oral agreements are given). If the first party does not uphold their end of the agreement, the second party cannot complete theirs, and the contract may be considered null and void, or under breach of contract, per the express conditions.

Conditions Precedent

There are generally two types of express conditions, the first of which is conditions precedent. Conditions precedent essentially uses the above definition of something needed be done or to occur before remainder of the contract or agreement can be fulfilled. The act of the agreed upon event occurring is then what “kicks off” the contractual agreement between the two parties.

Again, using the above example: once the nonprofit organization provides the necessary documentation, the grant writer is now contractually obligated to complete the agreed upon grant proposals. Another example of conditions precedent is often found in trust or estate laws: perhaps a beneficiary needs to reach a certain age before receiving their inheritance.

Simply put, conditions precedent is what initiates the contract.

Conditions Subsequent

The other type of express condition is known as conditions subsequent. Conditions subsequent is essentially the opposite of conditions precedent, as rather than serving as the moment a contract is initiated, this is what brings a contract or agreement to an end. Referring to the previously used example of the nonprofit organization and the grant writer: once the grant writer has submitted the agreed upon number of proposals, they have fulfilled their contractual obligations; thus, conditions subsequent.

It is important for both parties to be clear on what constitutes a completion of contract, however. In the grant writer example, it would need to be spelled out as to whether or not the grant writer is expected to make additional edits or revisions at the request of the nonprofit organization. What exactly defines the completion of duties? Is it when the grant writer submits drafts of the proposals to the organization or is it when the organization submits the finalized proposals to the potential funders? Without clarity, and terms agreed upon by all parties, it can lead to dissatisfied parties and possibly even legal arguments over breach of contract.

Additionally, without clarity regarding the scope of services, and satisfaction, it can raise questions over final payments. Is the grant writer entitled to payment regardless of whether or not the organization has to make significant edits or revisions to the grant proposals? Or is the organization only expected to make payment in full if they are fully satisfied with the quality of the proposals submitted?

What May Happen if All Parties Are Not in Agreement

There are any number of worse case scenarios that may occur if there is lack of clarity among all parties in defining the scope of services, and conditions precedent or conditions subsequent. Some of these may include:

  • Breach of contract, which is essentially a failure to honor the parameters of the contract.
  • Negligence. We often hear of negligence as it pertains to medical care: doctors being sued for malpractice on the grounds of negligence. However, negligence may be applied to most types of legal agreements.

Either of the above scenarios can lead to a civil lawsuit. Unlike a criminal lawsuit, a civil lawsuit does not have the potential of ending in jail time, however, the defendant may be found guilty of either breach of contract or negligence and be expected to provide monetary compensation to the plaintiff.

What to Do If You Need Help

If you need help with express conditions, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.