Conditions Precedent: Will They Bite?

Conditions precedent (which include time bar provisions) are important contractual devices, serving as either gateways or barriers to contractual relief. Their identification and enforcement, however, is not always straightforward. In some cases, a clause may not appear to be a condition precedent but will still operate as one and, in other cases, a clause may appear to be a condition precedent on the surface but is incapable of being enforced as one.

In this Insight we examine when a provision is, or is not, a condition precedent by reference to recent case law. We then examine where in the standard forms of construction contract they are often encountered before analysing what parties need to have in mind when determining if a provision is in fact a condition precedent and, further, whether it can be enforced.