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Independent Promises

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INDEPENDENT PROMISES. A promise may be independent in sev eral ways: (i) It may be absolute, (ii)it may be divisible, (iii) it may be subsidiary. (Anson on Cont. p. 287.) (i) By an absolute promise is meant one for which the consideration is the mere liability of the other party, and not the performance of his promise. The order in which things are to be done serves to test whether the promises are absolute or not. And the modern tendency is to favor that construction which will render the promises dependent rather than abso lute.

(ii) Where the performance of a promise is divisible a partial breach is no discharge. A common example in which the promise of each party is thus divisible in its performance is the sale of goods by a contract under which the delivery and acceptance are to take place by installments. The decisions are conflicting in regard to installment contracts being divisible of not. The default in one installment may show intent to break the contract, as where it is accompanied with a state ment to that effect, or where the non-payment of one installment indicates the inability of the buyer to pay for the rest. So the parties may agree that there shall be a full performance of a divisible contract before the other promise is binding.

(iii) "Where a promise is to be performed in the course of the performance of the contract and after some of the consideration, of which it forms a part, has been given, it will be regarded as subsidiary, and its breach will not effect a discharge unless there be words expressing that it is a condition precedent, or unless the performance of the thing promised be plainly es sential to the contract." So a warranty of quality in an executed contract of sale is an example of a sub sidiary promise, for a breach of which damages are re• coverable, but the contract stands.

promise, contract and performance