Keith Thompson wrote: [...] > Consider a license that says: > > You may copy, make derivative works, and distribute those works > that are based on the covered source code provided that you first > compute to the last decimal place the value of pi. > > The condition is not illegal, merely impossible. I'd say that the > above is equivalent to: > > You may not copy, make derivative works, or distribute those works > that are based on the covered source code.
Nope, consider: http://law.onecle.com/california/civil/1441.html "A condition in a contract, the fulfillment of which is impossible or unlawful, within the meaning of the Article on the Object of Contracts, or which is repugnant to the nature of the interest created by the contract, is void." http://www.websupp.org/data/EDCA/1:07-cv-00092-41-EDCA.pdf "Legal Standard Under the law of contracts, parties may expressly agree that a right or duty is conditional upon the occurrence or nonoccurrence of an act or event. Platt Pacific, Inc. v. Andelson, 6 Cal.4th 307, 313 (1993). A condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises. Cal. Civ. Code § 1436; Platt Pacific, 6 Cal.4th at 313. Generally, if a condition precedent is not fulfilled, the right to enforce the contract does not evolve. Kadner v. Shields, 20 Cal.App.3d 251, 258 (1971); see also Cal. Civ. Code § 1436; Bennett v. Carlen, 213 Cal.App.2d 307, 311 (1963). Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused. R.J. Kuhl Corp. v. Sullivan, 13 Cal.App.4th 1589, 1601 (1993). The nonoccurrence of a condition precedent may be excused for a number of legally recognized reasons. Platt Pacific, 6 Cal.4th at 314. Performance of a condition precedent may be excused inter alia when the condition is waived, performance of the condition is unlawful or impossible, or the other party prevents or makes impossible the performance of the condition. See Cal. Civ. Code § 1441; Jacobs v. Tenneco West, Inc., 186 Cal.App.3d 1413, 1418 (1986); Sosin v. Richardson, 210 Cal.App.2d 258, 264 (1962); BAJI California Jury Instructions Civil § 10.81 (Spring 2007 ed.). The nonoccurrence of a condition may be excused by prevention or hinderance of its occurrence through a breach of the duty of good faith and fair dealing. R.J. Kuhl, 13 Cal.App.4th at 1601. [...] Discussion Orlando has sufficiently pled a cause of action for breach of contract. The Court will again assume that Paragraph 2 and Paragraph 9 contain conditions precedent.5 Defendantss motion is largely based on the premise that Orlando must allege that these conditions have been performed. However, the nonoccurrence of a condition precedent may be excused and the contract enforced under certain circumstances. See Cal. Civ. Code § 1441; Platt Pacific, 6 Cal.4th at 314; R.J. Kuhl, 13 Cal.App.4th at 1601; Careau & Co., 222 Cal.App.3d at 1389-91; Jacobs, 186 Cal.App.3d at 1418; Sosin, 210 Cal.App.2d at 264; BAJI California Jury Instructions Civil § 10.81 (Spring 2007 ed.). Impossibility and conduct by the defendant may excuse the failure of a condition precedent. See Cal. Civ. Code § 1441; R.J. Kuhl, 13 Cal.App.4th at 1601; Jacobs, 186 Cal.App.3d at 1418; BAJI § 10.81. With respect to Paragraph 2, Orlando has argued that Defendants and Alarm One acted in bad faith by failing to make good faith efforts to obtain a $200,000 note from lenders. See FAC at ¶ 14. This allegation sufficiently pleads an excuse to the nonoccurrence of Paragraph 2. With respect to Paragraph 9, Orlando pleads that the condition is impossible because there were actually no third party creditors who were legally required to give consent (which was known to Defendants and Alarm One), thus, making it impossible to obtain the consent. See FAC at ¶ 16. Further, Orlando pleads that Defendants and Alarm One made no good faith efforts to obtain consent from necessary third party creditors if such creditors actually do exist. See FAC at ¶ 17. These allegations sufficiently plead an excuse to the nonoccurrence of Paragraph 9. That there is tension between Orlandos theories regarding necessary third party creditors does not affect the FAC since inconsistent and/or alternative pleading is permissible in federal court. See Fed. R. Civ. Pro. 8(e)(2); Oki Am., Inc. v. Microtech Intl, Inc., 872 F.2d 312, 314 (9th Cir. 1989); Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 463 (9th Cir. 1977). Defendantss arguments regarding a possible lack of mutual assent and the application of California Civil Code § 1441 if the third party creditors do not actually exist is inadequately developed and unpersuasive. First, by the plain language of California Civil Code § 1441, that section voids impossible conditions precedent; it does not void entire contracts. See Cal. Civ. Code § 1441; Carlisle v. Lady, 109 Cal.App. 567, 571-72 (1930)." regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
