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Turney v Zhilka, [1959] SCR 578

Facts:

Sale of land. Before sale of land had to be annexed by Village. It never happened. B wants to waive condition and buy

Issue(s):

Can the buyer still buy the land even though the condition has not been fulfilled?

Ratio:

When the benefit of a clause is for both parties, then neither party can waive that condition – when obligations on both side rely on future uncertain event in control of 3rd party it is a true condition precedent.
**If a condition is determined to be a condition precedent, then until the event occurs there is no right to performance on either side.

Analysis:

Buyer has no right to waive the condition.
**The obligations on both sides, depend upon a future uncertain event, the happening of which depends entirely on the will of a 3rd party = true condition precedent (an external condition upon which the existence of the obligation depends)

Holding:

Said it was a condition precedent on which obligation depends – so it cant be waived by the buyer

Comments:

Limitation - a party can waive a condition which is inserted for his benefit UNLESS the condition is subject to an external (3rd) party to perform the condition
**Unless put in the contract the right to waive it


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