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208 Cards in this Set

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1. Setup the structure of government for the unit of government they control, creating branches and subdivisions and stating the powers given and denied and the relationship between the federal government and the states (e.g. Federalism). 2. To prevent other units of government from taking certain actions or passing certain laws. e.g. the Bill of Rights.
Laws created by elected representative stated in an authoritative form in statute books or codes
model statutes drafted by private bodies of lawyers or scholars. Must be enacted by legislature. State-by-state uniformity.
Uniform Acts
Laws made and applied by judges. Only exist at state level.
Common Law
(Let the Decision Stand)
Stare Decisis
decisions of other judges in similar cases. Rules of tort, contract and agency mainly common law
Common law and statutory rules covering various areas of the law. Not really laws and courts are not bound by them, but state courts do find them persuasive
(Fairness) Accomplishing "rough justice" when common law would produce unfair results.
a court order forbidding a party to do some act or commanding him to perform some act or commanding him to perform some act. Usually a freeze or stop. Courts do not like to command. Plaintiff will have to show irreparable harm. E.g. Healthcare - Injunction to treat a minor.
Immediate injunction.
Temporary Restraining Order
A party is ordered to perform according to the terms of her contract. Usually can't force someone to perform. Before sue, make a demand, non-breaching person must mitigate damages. Uniqueness.
Specific Performance
When a court rewrites the contract terms to reflect the parties real intentions. "The words do not reflect the deal"
A cancellation of a contract in which the parties are returned to their pre-contractual position. e.g. fraud.
Administrative regulations appear in a precise form in one authoritative source but they are not created by a legislative body.
Administrative Regulations and Decisions
Produced by the president and a foreign country and approved by 2/3 of the senate become the supreme law of the land.
Enactments of counties and municipalities(e.g. zoning ordinances)
President or Governor having limited power to issue laws through the result of Legislative Delegation.
Executive Orders
Which laws take priority in a conflict - 1. Federal Supremacy 2. Constitution Defeat. 3. Federal statute over treaty. 4. statutes defeat conflicting laws that depend on a legislative delegation for their legality. 5. Statutes and laws derived from them by delegation defeat inconsistent common laws.
Priority Rules
The three Classifications of Law
1. Criminal Law and Civil Law,
2. Substantive Law and Procedural Law,
3. Public Law and Private Law.
When the government prosecutes someone for committing a crime. Duties are owed to the public as a whole.
Criminal Law
Obligations when one party owes another.
Civil Law
Sets the rights and duties of people as they are in society. Law that governs rights and obligations of those who are subject to it.
Substantive Law
Controls the behavior of government bodies, mainly courts.
Procedural Law
Concerns the power of government and its relation with private parties.
Public Law 
A framework of legal rules that enables parties to set rights and duties they owe each other.
Private Law
comprises the rules that have been laid down by a recognized authority. Enforced whether just or unjust.
Positive law
A school of thought in jurisprudence and the philosophy of law. The principal claims of legal positivism are that:

laws are rules made, whether deliberately or unintentionally, by human beings;
there is no inherent or necessary connection between the validity conditions of law and ethics or morality.

The command of a recognized political authority.
Legal Positivism
Takes issue with Legal Positivism by rejecting the positivist separation of law and morality. Cicero "The highest reason, implanted in nature"
Natural Law
The law of the books is less important than the law in action. The behavior of public officials (mainly judges) as they deal with matters before the legal system.
American Legal Realism
A general labeling uniting several different approaches that examine law within it's social context. "Law is a process of social ordering reflecting society's dominant interests and values."
Sociological Jurisprudence
Person who noted that "Legal change could only be explained historically, as a slow response to social change"
Freidrich Karl von Savigny
Person who stated "Rejected positivism. Two different "processes of social ordering" Positivism and Living Law - informal social controls such as customs, family ties and business practices. Positive Law is only one element of social controls.
Laws must change to meet change social conditions and values."
Eugen Ehrlich
Certain legal consequences will occur if certain events happen. This can be misleading as it suggests definitiveness, certainty, permanence and predictability.
Black Letter Text
Deductive or Syllogistic.
Legal Reasoning
Using precedents or the decisions of prior cases, stare decisis.
Case Law Reasoning
The natural ambiguity of language serves as one reason courts face difficulties when interpreting statutes. Legislature may deliberately use ambiguous wording and expects the courts to "fill in the blanks" on a case by case basis.
Statutory Interpretation
Interpretation of a statute if the words have a clear, common, accepted meaning.
Plain Meaning Rule
History includes the following resources: Reports of investigative committees, law revision commissions that lead to the legislation, transcripts of summaries of hearings of committees that originally drafted the legislation. Reports issued, debates, reports of conference committees, amendments, defeated amendments, other bills not passed but proposing similar legislation and discrepancies between bills. 
Legislative History
To determine whether a particular interpretation of the statute is consistent with the reason the law was enacted.
Legislative Purpose 
Widely accepted general notions of public policy.
General Public Purpose
Following prior decisions to promote stability and certainty and by preventing each successive court considering a statute from adopting its own interpretation.
Prior Interpretations
when general words follow words of a specific, limited meaning, the general language should be limited to things of the same class as those specifically stated.
Maxims (ejusdem generis)
Allow parties to determine their rights and duties even though their controversy has not advanced to the point where harm has occurred and legal relief may be necessary
Declaratory Judgments
Traffic courts, probate courts, small claims courts. Large number of cases, many informal without legal representation. Not courts of records. Appeals require new trials. Find the relevant facts, identify appropriate rules of law and combine the facts and law to reach a decision.
Courts of limited jurisdiction
Follows the same process as courts of limited jurisdiction except are not governed by subject matter restrictions, civil damage limits or criminal penalties. These courts are courts of record. States usually have at least one of these courts per each county.
Trial Courts
Court that only decides legal questions reviewing the records of trial court proceedings. Correct errors by trial judges and hear appeals from state administrative agencies. Some states have only one of these courts (Supreme Court), Most have an intermediate version of this court.
Appellate Courts
A court's power to hear a case and to issue a decision binding to both parties. (Small Claims - Up to $7500, Limited Jurisdiction - Limited amount of money up to $25,000, Unlimited Jurisdiction - Over $25,000)
The power to decide the type of dispute involved in the case.
Subject matter jurisdiction
Jurisdiction based on the residence, location or activities of the defendant. (Long Arm jurisdiction for those doing business within the state) "Over the Person" and Minimum Contacts
In personam jurisdiction
Jurisdiction based on property within the state. Determines rights to property even through the persons whose rights are affected are out of state's in personam jurisdiction.
In rem jurisdiction
A court has this if it is a territory that is a fair and convenient forum in which to hear the case.
Effects the addressing of both jurisdiction and venue issues.
Forum selection clause
protects out of state defendants from potentially biased state courts. It exists when: 1. The case is between citizens of different states and 2. the amount in controversy exceeds  $75,000. This type of jurisdiction also exists between citizens of a state and citizens or governments of foreign nations if the amount in controversy is over $75,000. Corporations are normally citizens of the state of incorporation and the state where it's principle place of business exists.
Diversity jurisdiction
Type of Jurisdiction: When the case is under Constitution, laws or treaties of the United States. No amount of controversy amount is required.
Federal Question Jurisdiction
Type of jurisdiction for some matters, such as patent suits.
Exclusive Jurisdiction
Jurisdiction with state courts on some matters.
Concurrent Jurisdiction
Types of specialized Federal Courts
Court of Federal Claims, Court of International Trade, Bankruptcy Court, Tax Court.
11 districts, District of Columbia and Federal Courts. The most important function of this court is to hear appeals from decisions of the federal district courts.
Federal Court of Appeals
The highest court in the land, is mainly an appellate court. Hears appeals from the federal courts and the highest state courts.
The U.S. Supreme Court 
The Supreme Court has the discretion as to which cases it is willing to hear the appeal. The Supreme court has this when 1. the validity of any treaty of federal statute has been questioned. 2. Any state statute is challenged as repugnant to federal law. 3. Any title, right, privilege, or immunity is claimed under federal law.
Certiorari Jurisdiction
The jurisdiction in lawsuits between states. It also has original, but not exclusive jurisdiction involving foreign ambassadors, ministers and like parties, controversies between the U.S. and a state and cases in which a state proceeds against citizens of another state or against aliens.
Original Jurisdiction of the Supreme Court
A set of legal rules establishing how a civil lawsuit proceeds from beginning to end. An adversary system litigants take contrary positions before a judge and possibly a jury. Plaintiffs must prove each element of their claim by a preponderance of the evidence (by credibility, not quantity).
Civil Procedure
notifies the defendant that they are being sued. Names the plaintiff and states the time within the which the defendant must enter an appearance in court
Documents the parties file with the court when they first state their claims and defenses. Including the complaint, answer and reply.
States the plaintiff's claims in separate, numbered paragraphs. It must allege sufficient facts to show that the plaintiff would be entitled to legal relief and give the defendant the nature of the plaintiff's claims and state the requested remedy.
Filing of an answer to the plaintiffs complaint. Typically within 30-45 days. Responds to the complaint paragraph by paragraph with an admission or denial of each of the plaintiff's claims.
Enables the defendant to win the case even if all the allegations are true. e.g. Fraud by the plaintiff.
Affirmative defense
a new claim by the defendant arising from the matters stated in the complaint by the plaintiff.
Counter claim
The plaintiff is allowed to respond to an affirmative defense or a counterclaim
Evident that the complaint or pleadings from the plaintiff does not have a valid claim. Examples include inadequate service of process, lack of jurisdiction, failure to state a claim (most common) -- demurrer ("so what?") in California.
Motion to Dismiss
Litigants do not have all of the facts they need to prove their case or establish a defense. Helps litigants obtain the facts and to arrow and clarify the issues for trial
Written questions directed by the plaintiff to the defendant or vice versa. e.g. names of witnesses
Written demand that the other party admit or deny, in writing, certain statements of supposed fact or of the application of law.
Requests for Admissions
Sworn statement. Toughest discovery.
You must serve a complaint with a summons. Cant tape to door if they are not home (Bad service)
A Motion for a judgment. A device for disposing of relatively clear cases with a trial. Cannot have any dispute of the facts. Submission of exhibits from discovery. Either side can have this type of judgment.
Summary Judgment
The judge meets informally with the attorneys to stipulate, or agree to, the resolution of certain issues in order to simplify the trial. Urge to settle.
Pretrial conference
Pretrial jury screening to remove biased jurors  for cause.
Voir Dire
allows an attorney to remove a juror without having to show bias or other cause.
Peremptory Challenge
Bench (Judge Only) or Jury
Presentation of plaintiffs case: Direct, Cross-, Redirect-, Recross-examination, Defense Case: Direct, Cross-,…Closing Argument. Bench - judge takes the trial under advisement - makes finding of facts, reaches conclusion of law, renders judgment, if to plaintiff -- states the relief. Jury - judge issues instructions, jury deliberation, determination of facts, applies legal rules and arrives at a verdict on which the courts judgment will be based.
Trial Process
Motion by either party, even when viewed favorably by either party has presented their evidence, asserts that the evidence leads to only one result and does not need to be considered by the jury. Nothing presented made a case.
Directed verdict
Makes the motion for a directed verdict.
Moving Party
Essentially same standard as the directed verdict. The presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend their verdict. Some jurisdictions require that a Directed Verdict was previously moved.
Judgment Not Withstanding the Verdict (Judgment n.o.v) -
Motion due to legal errors by the judge, jury or attorney misconduct, discovery of new evidence or award of excessive damages to the plaintiff. Most are unsuccessful.
Motion for a new trial
Usually only considers alleged errors of law made during the trial. Typically consider service of process, admission of evidence and legal conclusions for non-jury trials or instructions and damages for jury trials.
so lacking in assets as to make a civil lawsuit for damages a waste of time and money.
"Judgment Proof"
Plaintiff obtained to allow a sheriff to seize designated property of the defendant and sell it at a judicial sale to help satisfy the judgment.
Writ of execution
ability to seize property, wages or money held by a third party.
One or more persons to sue on behalf of themselves and all others who have suffered the same wrong. These type of lawsuits allows legal wrongs and losses to a large number of widely disbursed parties to fully compensated and allows economy of judicial effort by combining many similar claims into one case.
Class Action
Settlement, Arbitration, Mediation, Minitrial
Alternative Dispute Resolution
A contract where the defendant agrees to pay the plaintiff a sum of money, in exchange for the plaintiffs promise to release the defendant from liability for the plaintiff's claims.
another decision maker outside of the court system (usually retired judges), usually no discovery. No appeal.
An informal, abbreviated private trial to promote settlement of disputes. Cases presented to a panel composed of managers from each side, sometimes presided over by a neutral party. The advisor may offer an opinion or the managers attempt to negotiate a settlement.
Not considered offers, treated as invitations to offer or negotiate.
A type of unilateral contract. Only offerees who started performance with knowledge of the offer are entitled to this.
Seller is making an invitation to offer. Acceptance occurs when the auctioneer strikes the goods off to the highest bidder.
Auction term treated as invitation to offer.
"The master of the offer" offeror have the power to determine the terms and conditions under which they are bound to a contract. May include terms that limit its effective life. Term end date should be as specific as possible.
Terms of the offer
Offerors may revoke their offers at any time prior to acceptance, even if they have promised to hold the offer open for a stated period of time.
_____________ Exceptions

"(1) Options - A separate contract in which an offeror agrees not to revoke her offer for a stated time in exchange for some valuable consideration.
(2) Some courts state that the power to revoke ends as soon as one party begins performance.
(3) Promissory Estoppel
(4) Firm Offers for the sale of goods."
Revocation Exceptions
An offeree may expressly reject an offer by indicating they are unwilling to accept it.
Offer terminates automatically without notice.
Death or Insanity of either party
Prior to acceptance, the subject matter of a proposed contract is accidentally destroyed the offer is terminated.
Destruction of Subject Matter
If something becomes illegal before the contract is finalized, The offer is terminated.
Intervening Illegality
Contracts should be enforced because they are the products of free wills of their creators to be free to determine the extent of their obligations.
Freedom of contract
contracts that are preprinted by one party and presented to the other party for signing. The party who drafts the contract has the most bargaining power. Typically are non-negotiable but can be oppressive and abnormal for the type of transaction.
Standardized form contracts
Components required for an agreement to qualify as a contract.
a set of promises must be based on a voluntary agreement, which is made up of an offer and an acceptance of that offer. In addition, there usually must be consideration to support each party's promise. The contract must be between parties who have capacity (Ability to understand, Mutual Understanding/Meeting of the minds.) to contract and the objective and performance of the contract must be legal.
A standardized online contract for online services or account access, usually agreed to by clicking a checkmark or icon.
Clickwrap contracts
A contract that is agreed to by opening a package.
Shrinkwrap contract/license
Article 2 of the Uniform Commercial Code (UCC) (Statutory in every state) and the common law of contracts (Court made).
Sources of Law Governing Contracts
"Honesty in fact"
Good Faith
A contract that is grossly unfair or one sided. Merchants are held to a higher standard in contracts than non-merchants.
Unconscionable contract
Someone who regularly deals in the kind of goods being sold, or pretends to have some special knowledge about the goods, or employed an agent in the sale who fits either of these two descriptions. e.g. if a car dealer sells you a car, they are one. If the car dealer sells you a refrigerator, they are not one.
An attempt to codify and systemize the soundest principles of contracts from prior judicial decisions. Restatement is not law, but consideration of leading scholars.
Restatement of Contracts (1932)
Shifted from rules to standards. Explicitly embraces good faith and conscionability.
Second Restatement (1979)
Imposes a duty on a person to pay for a loss or benefit yet they do not meet the criteria for formation of a contract.
Non-Contract obligations
An obligation imposed by law to avoid injustice, not created by voluntary consent. When one party confers a benefit on another who knowingly accepts it and retains it in an unjust manner (Unjust Enrichment).
One person may rely on a promise made by another even though the promise and surrounding circumstances are not sufficient. Example - Prize if you do well on exam.
Promissory Estoppel
No opinion written in a trial from this type of court.
State Courts
Dissenting opinion to mark for consideration in future.
Disagree with legal decision but agree with the outcome.
Concurring opinion
A manifestation of assent to the terms of the offer made by the offeree in the manner invited or required by the offer.
(1) The offeree intended to enter a contract. (2) The offeree accepted on the terms of the contract. (3) The offeree communicated his acceptance to the offeror.
Evidence of Acceptance
Change in terms of the offer or to add new terms are treated as counteroffers.
Intent and Acceptance on the Offerer's terms.
Money or a promise to pay. Barring a right to entitlement you had to enjoy. E.g. a settlement. Releasing claims.
giving up a known right.
Something done in the past - should not be consideration.
Past Consideration
Performing a legal duty which is already owed does not constitute consideration, unless that duty is doubtful or honestly disputed
Preexisting Duty
Merely hold the illusion of contract. A contract that courts will not enforce.
Illusory Promises
Insiders transactions can be undone within 6 months of this, for family, 12 months
Bankruptcy law
Contracts induced by misrepresentation, fraud, mistake, duress or undue influence
Voidable Contracts
The ability to cancel a contract by a person who's consent was not real
When a person who had the right to rescind a contract elects not to do so.
Assertion that is not in accord with the truth
Unintentional Deception
Misrepresentation made with knowledge of falsity and intent to deceive
Legal term for fraud that distinguishes it from innocent misrepresentation. A legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it.
1. An untrue assertion of fact was made 2. The fact asserted was material or the assertion was fraudulent 3. The Complaining Party entered the contract because of his reliance on the assertion 4. The reliance of the complaining party was reasonable (5. Injury (for tort))
Grounds for innocent or fraudulent misrepresentaiton
Active conduct intended to prevent the other party from discovering the fact is considered to be the equivalent of assertion.
Failure to volunteer information
A type of fact that is likely to play a significant role in inducing a reasonable person to enter a contract
Material Facts
A person pursues some course of action because of his faith in an assertion made to him
Actual Reliance
Relying on an assertion that is obviously not false or no issue to not to have taken seriously.
Justifiable Reliance
A belief that is not in accord with the truth
A mistake by just one party
Unilateral Mistake
A Mistake by both parties
Mutual Mistake
Remedy of a mutual mistake
Wrongful coercion that induces a person to enter or modify a contract (Gun to the head).
A person induces the formation or modification of a contract by threatening another person's economic interest.
Economic Duress
Unfair pursuasion involving wrongful pressure exerted on a suseptible individual during the bargaining process.
Undue Influence
Elements of Undue Influence
Relationship of trust and confidence or the person exercising the pursuasion dominates the person being pursuaded and the pursuasion is unfair
The contract is induced by improper threat and the threat leaves no reasonable alternative but to enter the contract.
Elements of Duress
The ability to incur legal obligations and acquire legal rights
The right to (in a sense, rescind) contracts by a minor or a legal representative, such as a guardian.
Judged by the court
Is a contract [Void or Voidable] if the person who entered the contract was found mentally incompetent WHEN they entered the contract.
Is a contract [Void or Voidable] if the person who entered the contract was found mentally incompetent AFTER they entered the contract.
Agreements that violate statutes, Agreements that violate public policy developed by courts and unconscionable agreements or contracts of adhesion
Types of illegal contracts.
Type of legislation whos purpose is to protect the public against dishonest or incompetent competitors.
A licensing statute used primary to raise money rather than as a means of protecting the public
Revenue Raising Measure
A contract in violation of [regulatory or of a revenue raising measure] is enforceable in court
Revenue Raising Measure
A contractual clause that would provide that the seller or employee agrees not to engage in a particular competing activity or the termination of employment
Ancillary covenant not to compete (a.k.a. noncompetition clause or noncompete)
Noncompete enforcement criteria
Must serve a legitimate business purpose. The restrictiion must be resaonable in time, geographic area and scope. The competition clause should not impose an undue hardship.
Agreements that constrain the employee from divulging or using certain information gained during his employment.
Confidentiality or nondisclosure agreements
Agreements that forbid an employee from soliciting the employer's employees, clients or customers.
Nonsolicitation agreements
A provision in a contract that purports to relieve one of the parties from tort liabilities but cannot protect beyond negligence or duty to the public or where defined by statutes or common law.
Exculpatory Clause
Contracts in which a stronger party is able to determine the terms of a contract, leaving the weaker party no practical choice but to "adhere" to the terms. (Take it or leave it)
Contracts of Adhesion
Absence of meaningful choice through terms unreasonable advantages to one of the parties of a contract
Unfairness in the bargaining process
Procedural Unconscionability
Contract terms that are oppressive, unreasonably one-sided or unjustifiably harsh. E.g. disproportionate amount of risk, deprival of a remedy for the other parties breach.
Substantive Unconscionability
A valid contract becomes unenforceable if it does not comply with the formalities required by state laws.
Statutes of Fraud
Collateral contracts, sale of real estate, bilateral contracts taking longer than a year, sales of goods over $500, where the executor or administrator promises to be personally liable, Marriage
Contracts covered by Statute of Frauds.
A contract in which one person (the guarantor) agrees to pay the debt or obligation that a second person (the principal debtor) owes to a third party (the obligee)
Collateral Contract
A contract in which a person undertakes an obligation that is not conditioned on the default of another person and the debt is their own and not of another person
Original Contract
No writing is required where the guarentor makes a collateral promise for the purpose of obtaining some economic advantage.
Main Purpose or Leading Object
3 elements of an adequate Memorandum
Terms of the contract, identification of the parties, the subject matter of the contract must be identified with reasonable certainty and be signed by the party to be charged.
1. Confirmatory memorandum between merchants, 2. Part payment or part delivery, 3. Admission in pleadings or court, 4. Specially manufactured goods.
Alternative Means of Satisfying Statute of Frauds in Sale of Goods Contracts
Written or spoken statements that are not contained in the written contract. E.g. Prior promises that were not included in the final draft
Parol evidence rule.
A complete and final statement of an agreement
1. Additional terms in partially integrated contracts, 2. Explaining ambiguities (e.g. which one of many), 3. Circmstances invalidating contract, 4. Existence of condition (An event that creates a duty to perform), 5. Subsequent agreements.
Admissable Parol Evidence
A contract clause that states that the written contract is the complete integration of the parties' agreement.
Merger clause, aka integration clause
The transfer of a right under a contract
The appointment of another person to perform a duty under a contract
A person who owes a duty to perform under a contract
A person to whom an obligor owes the duty to perform under a contract
When an assignment has been made, the original obligee is now called this
The person to whom a right has been transferred to in an assignment
Assignability Exceptions
Contrary to public policy (wage assignment), Cannot adversley affect the obligor, a variation of the obligors duty (Personal skill, judement or character), the original contract forbids assignment (Sub-let)
The name of the person who an assignee may reassign a right to a third party
When an assignor is paid for making an assignment, the assignor is held to have made certain ____________ about the claims assigned validity
Implied Warranties (Assignor's Waranty Liability to Assignee)
When an obligor indicates his intent to appoint another person to perform his duties under a contract
When the delegator remains liable to the obligee unless the obligee agrees to substitute the delagatee's promise for that of the delegator
Obligor who appoints another person to perform his duty to obligee
Person who is appointed to perform the obligor's duty to the obligee
A person who may have the right to sue on a contract, despite not having originally been a party to the contract. This right arises where the third party is the intended beneficiary of the contract, as opposed to an incidental beneficiary.
Third Party Beneficiary
One party - called the promisee - makes an agreement to provide some consideration to a second party - called the promisor - in exchange for the promisor's agreement to provide some product, service, or support to the third party beneficiary named in the contract
Intended Beneficiary
A party who stands to benefit from the execution of the contract, although that was not the intent of either contracting party.
Incidental Beneficiary
When the promisor's performance is intended to satisfy a legal duty that the promisee owes to a third party. The third party is called this…
Creditor Beneficiary
If the promisee's primary purpose in contracting is to make a gift of the agreed-on performance to a third party, that third party is classified as this… (e.g. life insurance beneficiary). If a contract is breached, this person will have a cause of action against the promisor, but not the gift giving promisee.
Donee Beneficiary
Release of all obligations under a contract once performance is complete.
An uncertain future event that affects a party's duty to perform. (e.g. buying a house on the contingency that the bank approves the loan)
A future, uncertain event that creates the duty to perform. If it does not occur, performance does not become due
Conditional Precedent
When the contract calls for the parties to perform at the same time, each persons performance is conditioned on the performance or tender of performance by the other. (e.g. Escrow)
Concurrent Conditions
A future, uncertain event that discharges the duty to peform.
Condition Subsequent
Plaintiff bears the burden of proving this classifcation of condition
Conditional Precedent
Defendant bears the burden of proving this classification of condition
Condition Subsequent