O’Reilly v. Marketers Diversified Inc.

O’Reilly v. Marketers Diversified Inc.

Where an agreement is subject to an unmet condition precedent that is essential to the formation of the contract, the condition is not severable and cannot be waived unilaterally; absent performance of the condition there is no enforceable contract and specific performance will not be granted.

Citation
[1969] SCR 741
Parties
Defendant, Appellant: John Windham O'Reilly; Defendant, Appellant (executor): John Windham O'Reilly, Executor of the Will of Mary Beresford O'Reilly, Deceased; Plaintiff, Respondent: Marketers Diversified Inc.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
30 June 1969
Procedural Posture
Sale of Land (specific Performance) / Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia
Outcome
Appeal allowed; judgment at trial restored.
Legal Topics
Specific Performance, Condition Precedent, Waiver, Severability
Source Language
English
Property Contract Equity Specific Performance Condition Precedent Waiver Severability

Case Brief

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Parties

John Windham O'Reilly

Defendant, Appellant

John Windham O'Reilly, Executor of the Will of Mary Beresford O'Reilly, Deceased

Defendant, Appellant (executor)

Marketers Diversified Inc.

Plaintiff, Respondent

Procedural Posture

Sale of Land (specific Performance) / Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia

Legal Issues

  1. 1 Whether a purchaser may unilaterally waive a condition precedent in a contract for sale of land
  2. 2 Whether the clause 'purchaser being able to purchase adjacent lot' was a severable stipulation for purchaser's sole benefit
  3. 3 Whether there is an enforceable contract where a condition precedent remains unperformed

Ratio Decidendi

Where an agreement is subject to an unmet condition precedent that is essential to the formation of the contract, the condition is not severable and cannot be waived unilaterally; absent performance of the condition there is no enforceable contract and specific performance will not be granted.

Court Disposition

Appeal allowed; judgment at trial restored.

Orders

  • Appeal allowed and judgment at trial restored.
  • Action for specific performance dismissed.