Application of estoppel and waiver in the non-fulfillment of condition precedent

Abstract

Since the early 1856, the judge has already recognized the importance of the conditions precedent in contract law. In construction contract, conditions precedent is widely used in time-bar provision and usually stipulates the contractor to comply with certain specified procedures if he wants to avail himself of other contractual provisions. It is possible under English law for a condition precedent to be effective, so as to preclude a claimant from bringing an invalid claim. However, in practice, especially in construction contract for instance, the particular circumstances of each situation will need to be considered, not solely because the courts construe these provisions extremely strictly, but also because the actual circumstances of the case might reveal that the conditions precedent has not been effective. Under these circumstances, the contractor may be able to rely upon the equitable principles of waiver and/or estoppel. This principle of estoppel and waiver however can be used only on certain circumstances. Hence the objective of this research is to identify the circumstances or situations that allow the application of estoppel and waiver to be used when the contractor fails to follow conditions precedent. To achieve the objective of this research ten law cases were identified. From the analysis of these cases, there are seven circumstances have been identified: one, when there is non-denying of non-fulfillment of conditions precedent by the employer; two, when there is an acceptance of late submission of conditions precedent in the previous performance; three, when there is a promise made by the employer to the contractor; four, when the conduct or actions made by the employer that gives an impression of accepting of non-fulfillment of conditions precedent; five, when there is failure of the performance of conditions precedent on the employer‟s part that lead to the non-fulfillment of conditions precedent on the contractor‟s part; six, when there is conducts or acts made by the employer that gives agreement to prolong the period of the fulfillment of conditions precedent and lastly, when there is an acceptance of the performance even though the conditions precedent is not been fulfilled. Besides, there are also certain cases that point out that conditions precedent may remain effective.