Conditions Precedent in California Contracts: When Performance Is Not Yet Due

Last updated: November 2026

A condition precedent is an event that must occur before a party's contractual duty to perform arises. In California, if the condition has not occurred and has not been excused, the other side's performance is not yet due and a lawsuit for breach is premature. Courts read these clauses narrowly, because an unmet condition can cost a party everything it bargained for. Kolmogorov Law, P.C. litigates condition precedent disputes for businesses in Orange County, Los Angeles, and across California.

Call (909) 235-6116 or contact us online to discuss a contract where one side says the other's obligation never came due.

What a condition precedent is

The Civil Code defines a conditional obligation as one where a party's rights or duties depend on the occurrence of an uncertain event. (Civ. Code, § 1434.) A condition precedent is one that must be performed before some dependent right accrues or some dependent act is performed. (Civ. Code, § 1436.)

In a business contract the condition usually hides behind ordinary words: "if," "provided that," "subject to," "upon," "on condition that." A buyer's duty to close is conditioned on financing. A contractor's right to final payment is conditioned on the owner's architect issuing a certificate.

The key distinction is between a condition and a promise. If a term is a promise, failing to keep it is a breach that gives the other side damages. If it is a condition, failing to satisfy it means the other side's duty never arises at all. Conditions can produce harsh results. So a condition that involves a forfeiture must be strictly interpreted against the party it benefits. (Civ. Code, § 1442.) When the language is ambiguous, California courts generally lean toward reading the term as a promise rather than a condition.

How these disputes come up for business owners

An asset purchase agreement makes closing subject to the buyer obtaining a lease assignment from the landlord. The landlord drags its feet. The buyer walks. The seller sues for the deposit. Whether the lease assignment was a true condition, and whether the buyer did enough to obtain it, decides the case.

A marketing agency's contract says the client pays the final installment "upon approval of the deliverables." The client never formally approves and never formally rejects, then argues that the condition of approval never occurred.

A distribution agreement requires the distributor to give written notice of any claim within 30 days of discovery as a condition of the manufacturer's warranty obligations. The distributor gives notice by phone on day 20 and in writing on day 45. The manufacturer says the condition failed.

Who has to prove the condition

A party cannot require the other side to perform until it has fulfilled all conditions precedent imposed on itself. (Civ. Code, § 1439.) That puts the burden where you would expect. The plaintiff who claims a breach must show that any conditions to the defendant's performance occurred or were excused. California's jury instruction on breach of contract makes this an element of the claim. (CACI No. 303.)

Pleading is forgiving. The plaintiff may allege generally that it performed all conditions on its part, without stating the facts, but if the defendant controverts that allegation the plaintiff must prove the facts at trial. (Code Civ. Proc., § 457.)

Whether a particular term is a condition at all is often disputed. When it is, the jury decides what the parties intended, with a separate instruction on the point. (CACI No. 321.)

When a failed condition is excused

The party who benefits from a condition cannot cause it to fail and then rely on the failure. Performance is excused when it is prevented or delayed by the act of the creditor, even if the contract says otherwise. (Civ. Code, § 1511.) So a client that refuses to review deliverables cannot hide behind an "upon approval" clause forever.

Conditions can also be waived. A party that accepts late performance without objection may be found to have given up the right to insist on it. The same goes for a party that proceeds with the deal after learning the condition failed. A written contract's anti-waiver or integration clause can make these arguments harder, but it does not eliminate them.

Where the condition's failure would cause a forfeiture, a party may be relieved from it on making full compensation to the other side, unless the breach was grossly negligent, willful, or fraudulent. (Civ. Code, § 3275.) That provision matters most in real estate and installment contracts; our real estate contract page discusses how it plays out there.

Conditions precedent that lead to forfeiture

Courts dislike forfeitures. The clauses that generate litigation are the ones that turn a modest procedural slip into a total loss. A notice-of-claim deadline that extinguishes a warranty. A requirement that a commission is earned only if escrow closes by a date certain.

Courts enforce these when the language is clear and the party relying on it did nothing to cause the problem. When the language is unclear, the strict construction rule in Civil Code section 1442 does real work, and the party claiming forfeiture usually loses the ambiguity.

What we do, and where these cases are heard

We begin by classifying the term. Condition, promise, or both. Then we build the timeline, because excuse, waiver, and prevention are all about conduct. For plaintiffs, we plead performance of conditions properly and prepare the proof. For defendants, we identify the failed condition early, raise it in the answer, and test it on summary judgment where the facts allow.

These disputes are heard in the Superior Court, in Orange County usually at the Central Justice Center in Santa Ana and in Los Angeles at the Stanley Mosk Courthouse. Contracts with out-of-state parties may be litigated in the Central District of California.

What to bring to the first meeting

Bring the signed contract with all amendments, the correspondence around the disputed condition, proof of any notice given or approval requested, and a timeline showing when each step happened, including anything showing the other side blocked the condition.

Frequently asked questions

What is a condition precedent in a contract?

It is an event that must occur before a party's duty to perform arises. (Civ. Code, § 1436.) Financing contingencies and notice requirements are common examples. Until the condition occurs or is excused, the other side has no duty to perform and cannot be in breach for not performing.

What is the difference between a condition precedent and a promise?

Breaking a promise is a breach and gives the other side a damages claim. A failed condition means the dependent duty never arose, with no damages owed by anyone unless a promise was also broken. Because a condition can cause a forfeiture, courts read ambiguous language as a promise where they reasonably can. (Civ. Code, § 1442.)

Who has the burden of proving a condition precedent in California?

The party seeking performance must show it fulfilled the conditions imposed on it. (Civ. Code, § 1439.) It may plead that generally, but if the other side disputes the allegation, the facts must be proved at trial. (Code Civ. Proc., § 457.) The occurrence of conditions is an element of the breach of contract claim.

Can a condition precedent be waived?

Yes. A party may waive a condition that exists for its benefit by words or by conduct, such as accepting performance after the deadline or continuing with the deal after the condition failed. Prevention also excuses the condition: a party that blocks the condition from occurring cannot rely on its failure. (Civ. Code, § 1511.)

What happens if a condition precedent is not met?

The dependent obligation does not come due. If the condition was never going to be satisfied, the contract may simply end with neither side liable. If the condition's failure would cause a forfeiture, the affected party may seek relief by compensating the other side in full, except where the breach was willful or fraudulent. (Civ. Code, § 3275.)

Talk to a California breach of contract attorney

If a contract dispute turns on whether a condition was satisfied, waived, or excused, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California.

This page provides general information about California law and is not legal advice. Outcomes depend on the contract language, the conduct of the parties, and the court.