The tacit resolutive condition in bilateral contracts

Abstract

When a party to a contract does not expressly subject his duty to perform to the corresponding fulfillment of the other party's obligation, he is nonetheless presumed by law not to have willed to pledge his performance unless and until the other party performs his part of the deal. The introductory chapter of this thesis looks into the historical origins of the pactum commissorium taciturn and its infiltration into the modern law of contract. Chapter One, apart from exploring the presupposti of the tacit resolutive condition, delves into the issue of what constitutes lack of fulfillment of an obligation. Chapter Two outlines the difference between the tacit and the express resolutive conditions, highlighting the ape judicis nature of the latter. The role of the court and the discretion of the adjudicator are examined both with regards to the dissolution of the contract, as well as with regards to the award of damages to the unsatisfied creditor. Chapter Three deals with the effects of the fulfillment of the tacit resolutive condition, namely, the effetto liberatorio and the effetto recuperatorio. In principle the dissolution operates ex tune but this is subject to practical limitations. Chapter Four examines the tacit resolutive condition as a defence rather than as the basis of an action. The defence of inademplendum non est ademplendi and its recognition within the Maltese legal system are analysed. Chapter Five latches the whole discussion to commercial obligations. This necessarily brings into perspective those institutes the dissolution of which is specifically catered for by law. In fact the remaining part of the thesis deals with such institutes separately. The conclusion of the thesis reverts the focus back to the over-riding discretion of the adjudicator and how this in theory tends to eat away from the efficacy of the remedy of the tacit resolutive condition. Practice shows otherwise!