Master New York’s high court enforced an express condition precedent—timely delivery of a landlord’s written consent—holding that substantial performance cannot satisfy an express condition. with this comprehensive case brief.
Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co. is a leading New York Court of Appeals decision that sharply delineates the difference between promises and express conditions, and it is frequently paired with Jacob & Youngs v. Kent in Contracts courses. The case underscores the principle that when parties use clear language to make an event an express condition precedent—particularly with specificity as to form and timing—courts will demand literal compliance. Substantial performance, a doctrine that softens breaches of promises or constructive conditions, does not excuse nonoccurrence of an express condition.
The decision carries significant practical implications for transactional lawyers. It cautions that conditions drafted as “null and void unless,” coupled with a date certain and a specified form (e.g., written consent delivered), will be strictly enforced. The court also canvasses potential safety valves—waiver, estoppel, prevention, and disproportionate forfeiture—but refuses to deploy them absent clear proof. Oppenheimer thus teaches both doctrinal clarity and drafting discipline: know when you are creating an express condition and anticipate the consequences of noncompliance.
86 N.Y.2d 685 (N.Y. 1995) (parallel cites: 660 N.E.2d 415; 636 N.Y.S.2d 734)
The parties negotiated a commercial sublease of office space in Manhattan. Their letter agreement stated in substance that the sublease would be “null and void and of no further force and effect unless, on or before November 30, 1987,” the sublessor (Oppenheim, Appel, Dixon & Co.) delivered to the sublessee (Oppenheimer & Co., Inc.) the prime landlord’s written consent to the sublease. The clause specified that this condition was for the sublessee’s benefit and could be waived by the sublessee. As the deadline approached, the sublessor communicated that the landlord had agreed in principle, and forwarded a facsimile/telex from the landlord’s agent indicating consent subject to documentation. However, the formal written consent from the landlord was not executed and delivered to the sublessee by November 30. It was delivered several days later in early December. On December 1, the sublessee notified the sublessor that the condition had not been satisfied and that the sublease was therefore null and void. Litigation followed: the sublessor contended there had been substantial performance or that the communications sufficed to meet the condition; the sublessee argued the express condition required strict compliance and was unmet. The lower courts split, and the New York Court of Appeals granted review.
Whether the doctrine of substantial performance can satisfy an express condition precedent that required delivery of the prime landlord’s written consent by a date certain, and, if not satisfied, whether the sublease was null and void such that the sublessee had no duty to perform.
Express conditions precedent—events that the parties explicitly make prerequisites to the formation or duty of performance, often signaled by language such as “if,” “unless,” “until,” and “null and void unless”—must be literally performed; substantial performance of an express condition is insufficient. The nonoccurrence of an express condition prevents formation of the contract or the accrual of the duty it conditions, unless the condition is excused by waiver, estoppel, prevention, or a limited equitable doctrine avoiding disproportionate forfeiture when the condition is not a material part of the agreed exchange. Courts ascertain whether language creates an express condition by focusing on intent as expressed in the contract’s words and structure.
The landlord’s written consent was not delivered by the contractual deadline, so the express condition precedent failed. Substantial performance cannot cure failure of an express condition. No waiver, estoppel, prevention, or disproportionate forfeiture applied. The sublease was therefore null and void, and the sublessee had no contractual obligation to perform.
The court first identified the operative clause as an express condition because it used strong conditional language—“null and void” unless the sublessor delivered the landlord’s “written consent” by a specified date—and allocated the benefit of the condition to the sublessee. Given that intent, strict compliance was required. The sublessor’s production of a telex/facsimile from the landlord’s agent stating consent in principle did not satisfy the explicit requirement of delivery of the landlord’s written consent instrument by the deadline. Even assuming the landlord had orally consented or consented subject to documentation, the parties bargained for the certainty of written consent delivered by a date certain; the agreed formality and timing were part of the condition itself. The court rejected the argument that substantial performance should apply, explaining that doctrine mitigates breaches of promises or constructive conditions but does not excuse the nonoccurrence of an express condition, which by definition is an agreed prerequisite to duty. The court also declined to rest decision on whether the condition was one of contract formation or performance, observing that the consequence is the same: without the condition, no duty arises. Further, the court found no waiver because the sublessee did not intentionally relinquish the protection of the condition; the agreement made the condition waivable solely by the sublessee, and it never waived it. Estoppel failed because the sublessor did not show misleading conduct by the sublessee or detrimental reliance that would make enforcement inequitable. Finally, the court considered and rejected disproportionate forfeiture. The missed deadline resulted from the sublessor’s failure to obtain and deliver the specified consent on time; the parties were sophisticated commercial actors who allocated this risk and expressly provided that the sublease would be void absent timely delivery. The court was unwilling to rewrite the bargain to save the sublessor from the consequence of a condition that was central to the sublessee’s protection. Because the express condition failed and no recognized excuse applied, the sublease never became enforceable against the sublessee.
Oppenheimer is a cornerstone case on express conditions precedent. It teaches that courts will enforce clear conditional language as written, requiring literal compliance with both form and timing. For students, it sharpens the distinction between promises/constructive conditions (where substantial performance may soften breach) and express conditions (where it does not). The case also highlights recognized escape hatches—waiver, estoppel, prevention, and disproportionate forfeiture under the Restatement—while emphasizing their narrow application. Practically, Oppenheimer is a drafting lesson: if parties make a protection a condition with “null and void unless” and a date certain, courts will not substitute substantial performance or equitable gloss to rescue a missed condition.
An express condition precedent is an event that the parties explicitly make a prerequisite to contract formation or a party’s duty to perform. It is identified by clear conditional language (e.g., “if,” “unless,” “until,” “on condition that,” “null and void unless”) and by the structure of the agreement showing that occurrence is a threshold requirement rather than a promise. In Oppenheimer, the requirement that the sublessor deliver the prime landlord’s written consent by a specific date, coupled with the phrase “null and void,” was a textbook express condition.
No. Substantial performance applies to promises and constructive conditions, not to express conditions. If an event is truly an express condition precedent, it must occur exactly as specified or be excused by a recognized doctrine (waiver, estoppel, prevention, or limited equitable relief for disproportionate forfeiture). Oppenheimer squarely holds that substantial performance cannot cure the nonoccurrence of an express condition.
Only if the sublessee had clearly waived the condition or induced reliance justifying estoppel. The agreement expressly made the condition waivable by the sublessee, but the sublessee never intentionally relinquished the right. Nor did the sublessor show misleading conduct or reliance necessary for estoppel. Thus, no waiver or estoppel applied.
Courts may, in narrow circumstances, excuse the nonoccurrence of a condition to avoid disproportionate forfeiture, particularly when the condition is not a material part of the exchange. In Oppenheimer, the court declined to invoke that doctrine because the condition—timely delivery of written landlord consent—was central to the sublessee’s protection and the parties had expressly allocated the risk that it might not occur.
Because the parties agreed not merely to obtain consent but to deliver the landlord’s written consent by the deadline. The specified form and timing were part of the condition itself. Informal or anticipatory communications (like a telex or oral approval) did not meet the contract’s express requirement.
Consider using promise language instead of strict conditions, avoid “null and void unless” phrasing if flexibility is desired, build in cure periods or rolling deadlines, define acceptable forms of evidence (e.g., email copies), and specify that minor deviations or substantial compliance will suffice. Also include explicit waiver mechanics and notice-and-opportunity-to-cure provisions to mitigate rigid outcomes.
Oppenheimer crystallizes a core contracts lesson: when sophisticated parties intentionally make an event an express condition to duty or formation, courts will enforce the condition as written. The decision refuses to blur the line between promises and express conditions by importing substantial performance, and it applies potential excuses only with discipline.
For law students and practitioners, the case is both doctrinal and practical. It teaches how to read and characterize contract language, when equitable doctrines may or may not apply, and how drafting choices about conditions, timing, and formality determine outcomes. The takeaway is simple but powerful: if you choose strict conditions, expect courts to insist on strict compliance.