Everyone’s seen it - the contracts you sign for phone service, bank accounts, and everything else includes reference to the “terms and conditions” of the contract, and it may actually be spelled out in a header, e.g. “Terms and Conditions: 1) blah 2) yay 3) splat”
What is the difference between these two words in the context of contract law (especially in common law jurisdictions). Can someone give an example of a contract clause that is a Term of the contract, but is not a Condition, or a clause that constitutes a Condition, but is not a Term?
Is whether or not a clause is a term only, a condition only, or both a term and a condition ever material, or is it ever material if the contract itself only references one of the words? E.g. a contract that said:
CONTRACT
Joe. P. Robinson
Harold Z. Smith
Terms [note that it does not say “and Conditions”]:
lorem ipsum dolor sit amet
This contract is void in West Virginia or anywhere within 50 miles of where Joe Robinson’s little sister lives.
Zeppelin rules.
Wearing a red hat shall constitute a breach of the contract.
Neither party will disclose any information about Fight Club except as required by law.
…
Would the fact that the contract does not include the word “Conditions” ever result in a substantive difference in how the contract could be enforced, what sections are enforceable, how clauses are interpreted by a court, or what remedies are available under law for a breach?
“Doubled” legal words are an artifact of the time when Anglo Saxon and Norman were both commonly spoken languages in England, and have no legal significance. In each “doubled pair” one word is of Saxon origin and one is of Norman origin.
Is it, therefore, safe to assume that using these pairings instead of only a single one is never material in legal language?
E.g.
Plaintiff: “Your honor, the defendant did agree to pay due care and attention to <subject matter>, and has failed to do so, and I was hurt!”
Defendant: “No, that’s not true. I promised to, and I quote, ‘pay due attention’ period. I did not promise to pay due care. Therefore, the fact that I did not <do whatever> was not a breach of a promise and the plaintiff is entitled to nothing.”
Judge: “That’s immaterial. Those terms are synonymous in this court.”
Defendant: “!@#$%^”
The answers above would be sort of correct but not the full story in Australia or the UK, I don’t know about the US.
It is correct to say that “terms and conditions” is a habitual tautological legal doublet. However, the two words don’t mean the same thing.
A “term” is an all encompassing word for every element of a contract. Consequently, one could drop “conditions” from the doublet and just refer to the “terms of a contract” and it would mean the same as the “terms and conditions of a contract”.
Contrastingly however, the definition of “condition” is murkier. It is used at least three ways. Firstly, it *is sometimes *used as an all encompassing word for all elements of a contract, synonymously with “term”, but usually only when used as part of a phrase that makes the meaning clear (eg “conditions of contract”).
However, when “condition” is used pointedly, about a particular term of a contract, it has one of at least two other meanings. Firstly, it is sometimes used to mean a very important term of a contract the breach of which by one party entitles the other party to terminate. Secondly, it is sometimes used for terms that make performance of the contract (or parts thereof) contingent on something (eg “This contract for me to mow your lawn is conditional on me being able to buy a mower by Tuesday”).
Interesting. Have their ever been any cases (anywhere) where the use of the traditional doublet or only a single one in a statute, pleading, order, or contract has ever been held to be material?
E.g.:
“The court determines that the defendant’s conduct was lewd but was not lascivious, and so cannot be convicted of an offense involving ‘lewd and lascivious conduct’.”
“Based on the deed as written and filed, the defendant owns only the rights and interest to the aforementioned property, not the title. The title in the property remains with the plaintiff, because the deed that he signed to the defendant says that he transferred only “my rights and interest” rather than “my rights, title, and interest”. The defendant is ordered to pay $10,000 for breaching the plaintiff’s title.”
“You have only performed your duty, not discharged it. You must also discharge your duty, or else I will find you in contempt of court.”
“These three debts are due but unpayable. These other two are payable but are not due. And this last one is due and also payable.”
In one sense, the answer may be “no” but in a self-fulfilling way.
Commonly used traditional legal doublet or triplets are viewed as such precisely because they are entirely tautological, in which case whether all or only some of the words are used in a given instance could never be material.
Conversely, if there is any difference in meaning between the words in the legal doublet or triplet, then there will certainly have been instances where it will have been material that less than the full doublet or triplet has been used: but if the words don’t mean the same, then it would probably not have been regarded as a classic doublet or triplet anyway.
For example, “title” and “interest” mean very different things and undoubtedly there are cases all the time where people are held to have an interest in land but no title. However, to me, “right, title and interest” is for this reason not a traditional legal triplet.
I suppose there may be instances where what started out as a tautological doublet has, as a consequence of change of nuance of the two words it comprises over time, ceased to be tautological (or vice versa) but I’m not enough of a law nerd or historian to recall any instances.
But “term” can also have a more specific meaning, not covering every element of the contract, namely the duration of the contract. For instance, a mortgage contract may have a term of five years. “Term” there is very specific.
Since both “term” and condition" can have more than one meaning legal caution in drafting encourages using both.
Another non-tautalogical example is “Cease” (stop) and “Desist” (don’t start again).
But I think most times two synonyms are used because it sounds all formal, official, and full of legal-iness. (As pointed out, some of this may have made slightly more sense 1000 years ago in England, when English and French were mixing, though since the rest of the legal document is in English, I’m not sure it would really help to throw in an occasional French word
Perhaps I’m less cautious than you but I wouldn’t be concerned about dropping “conditions” and referring to the “terms of the contract”. The plural has no significant ambiguity in that usage.
Except that “desist” encompasses “stop” so “cease” is unnecessary.