Condition precedent

A condition precedent is a requirement that must be satisfied before a right or entitlement comes into existence at all - in subcontracts, most commonly drafting that makes timely written notice a precondition to any claim.

The phrase matters because of what it does to late compliance. If notice is merely a procedural requirement, serving it late weakens a claim. If notice is a condition precedent, serving it late means the entitlement never arises - there is nothing left to argue about.

Courts have generally enforced clearly drafted conditions precedent, even where the outcome is harsh. The drafting to search for in a subcontract: "condition precedent", "shall not be entitled unless", and "waives and releases".

Why it matters to subbies

Every identifiable time bar in the contracts analysed for the Australian Subcontract Index is drafted this way - as an absolute bar, not a plain requirement. It is the single most consequential piece of drafting in a subcontract, because it converts an administrative slip into a lost entitlement.

General information for Australian subcontractors, not legal advice - contract drafting and state legislation vary and change; your document and your state's Act govern. Written by Mat Kennedy at The Construction Contracts Co.