When a contract is said to be voidable, it is assumed that a contract has been made, but that it is subject to being unmade at the election of one party.  This must be because of the breach of some condition attached to its existence either expressly or by implication.

If a condition is attached to the contract’s coming into being, there is as yet no contract.  Either party may withdraw, at will, until the condition is determined.  There is no obligation, although there may be an offer or a promise, and hence there is no relation between the parties which requires discussion here.  But some conditions seemingly arising out of a contract already made are conditions of this sort.  Such is always the case if the condition of a promise lies within the control of the promisor’s own will.  For instance, a promise to pay for clothes if made to the customer’s satisfaction, has been held in Massachusetts to [316] make the promisor his own final judge. 1 So interpreted, it appears to me to be no contract at all, until the promisor’s satisfaction is expressed.  His promise is only to pay if he sees fit, and such a promise cannot be made a contract because it cannot impose any obligation. 2 If the promise were construed to mean that the clothes should be paid for provided they were such as ought to satisfy the promisor, 3 and thus to make the jury the arbiter, there would be a contract, because the promisor gives up control over the event, but it would be subject to a condition in the sense of the present analysis.

The conditions which a contract may contain have been divided by theorists into conditions precedent and conditions subsequent.  The distinction has even been pronounced of great importance.  It must be admitted that, if the course of pleading be taken as a test, it is so.  In some cases, the plaintiff has to state that a condition has been performed in order to put the defendant to his answer; in others, it is left to the defendant to set up that a condition has been broken.

In one sense, all conditions are subsequent; in another, all are precedent.  All are subsequent to the first stage of the obligation. 4 Take, for instance, the case of a promise to pay for work if done to the satisfaction of an architect.  The condition is a clear case of what is called a condition precedent.  There can be no duty to pay until the architect is satisfied.  But there can be a [317] contract before that moment, because the determination whether the promisor shall pay or not is no longer within his control.  Hence the condition is subsequent to the existence of the obligation.

On the other hand, every condition subsequent is precedent to the incidence of the burden of the law.  If we look at the law as it would be regarded by one who had no scruples against doing anything which he could do without incurring legal consequences, it is obvious that the main consequence attached by the law to a contract is a greater or less possibility of having to pay money.  The only question from the purely legal point of view is whether the promisor will be compelled to pay.  And the important moment is that at which that point is settled.  All conditions are precedent to that.