Page:Notes to Clark on contracts (IA notestoclarkonco00graviala).pdf/17

9. the boat as a condition subsequent, but until the lapse of 12 years, or until the destruction of the boat, whichever shall first happen, making a double limitation, so that on the happening of either event the agreement would be performed. The Court says: "The terms 'during the continuance of' and 'last so long' would seem to be precisely equivalent; and the full performance of the contract to be limited alike by the life of the patent and the life of the boat." It is added: "It is difficult to understand. . . . . how a contract to use an aid to navigation upon a boat, so long as she shall last, can be distinguished, on principle, from a contract to support a man so long as he shall live, which has often been decided, and is generally admitted, not to be within the Statute of Frauds."
   Clark's distinction between "terminated" and "performed" (see p. 79) can be better understood by considering whether the contract, terminated or discharged in both cases, is terminated by performance or terminated without performance. In the language of Harriman (Contracts, p. 202): "A distinction should be drawn between the case of a contract to do something until the happening of a certain event, which may happen within the year, and that of a contract to continue for more than one year, but with a proviso that on the happening of a given event, the contract shall be discharged. In the former case there is a limitation, in the latter a condition subsequent." When there is a limitation, the happening of the event terminates the contract by performance, so that the case is not within the statute, but when there is a condition subsequent, the nonperformance of the condition, or the happening of the event, terminates (or defeats) the contract without performance, so that if the contract extends beyond one year the possibility of such defeasance within one year will not take the case out of the statute.
   In the application of these principles, there is a preliminary question of construction, in order to decide whether the case involves a limitation or condition. Thus, it is held in England and some of our States, that if a contract is by its terms not to be performed within one year, the fact that either party is given an option to terminate it, on notice, within a year, does not prevent the application of the statute. See Dobson v. Collis, 1 H.