Also known as: expressly-conditioned · express condition
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An express condition of survival attached to a future interest or class gift. The condition is construed to require the beneficiary or beneficiaries to survive the distribution date unless the language or circumstances establish that the transferor had a different intention.
An express condition to payment stated in a promise or order. The condition prevents the instrument from being an unconditional promise or order under UCC Article 3.
Each sense below has its own examples, sources, and questions.
An express condition of survival attached to a future interest or class gift. The condition is construed to require the beneficiary or beneficiaries to survive the distribution date unless the language or circumstances establish that the transferor had a different intention.
Select any source to read its text and confirm it supports the definition.
An express condition to payment stated in a promise or order. The condition prevents the instrument from being an unconditional promise or order under UCC Article 3.
Select any source to read its text and confirm it supports the definition.
Grantor creates a trust providing that the principal goes to LT's surviving issue after LT's death. LT dies survived by two children, but one child dies before the trust distributes the principal. The court construes the survival requirement to apply to the distribution date, so the deceased child's share does not pass through that child's estate.
Testator devises the residue 'to my surviving grandchildren.' One grandchild predeceases the distribution date. The court applies the Restatement construction requiring survival to distribution, so the share does not pass through the deceased grandchild's estate.
Unless the language or circumstances show a different intention, the condition is construed to require survival until the distribution date. That construction follows from the natural meaning of the dispositive language and the probable intent of the transferor.
Supporting sources
Maker signs a promissory note that states payment is expressly conditional on the completion of a construction project. Because the note contains an express condition to payment, the instrument is not negotiable under UCC Article 3.
Drawer issues a draft that expressly conditions payment on presentment of a bill of lading. The condition appears on the face of the instrument, so the draft fails to qualify as an unconditional order under the UCC rule.
The condition prevents the promise or order from being unconditional, so the instrument is not negotiable under UCC Article 3.
Supporting sources
…but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state of things going to the root of the contract and essential to its performance. The condition or state of things need not be expressly specified in the contract if it clearly appears…