Re: More FSF hypocrisy

[Alexander Terekhov]

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 Defendants’s 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 Orlando’s 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 Int’l, Inc., 872 F.2d 312, 314 (9th Cir. 1989); Ryan
v. Foster & Marshall, Inc., 556 F.2d 460, 463 (9th Cir. 1977). 

Defendants’s 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.

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