Terms and Conditions

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Introduction

This article discusses the use of the phrase "terms and conditions" in federal legislative texts to refer generally to all the provisions of a contract, lease, licence, permit or similar type of document.

Recommendation

From a linguistic point of view, the use of the expression "terms and conditions" is not necessary when referring generally to all the provisions of such documents. The word "terms" includes conditions and can be used instead of the doublet. The word "provisions" is another alternative.

Discussion

According to the dictionaries, the word "term" is generic. It covers both conditions and other stipulations in a document.^[1] A condition according to the dictionaries is a term of a document.

1. The Canadian Oxford Dictionary defines "term" as conditions or stipulations.

2. Black's Law Dictionary defines a "condition" as

   A stipulation or prerequisite in a contract, will, or other instrument, constituting the essence of the instrument. If a court construes a contractual term to be a condition, then its untruth or breach will entitle the party to whom it is made to be discharged from all liabilities under the contract.

3. The Dictionary of Canadian Law also defines a "condition" as

   a contractual term which the parties intended to be fundamental to its performance

Bryan Garner states the following about the phrase "terms and conditions" in A Dictionary of Modern Legal Usage (2^nd ed.):

This phrase is among the most common redundancies in legal drafting. But, someone might ask, is term really broad enough to include condition — is not a condition something that must be satisfied before a contractual term applies? The OED defines terms as "conditions or stipulations limiting what is proposed to be granted or done," and that is its usual sense in law. Hence terms is sufficient.

In addition, Guest states in Anson's Law of Contract that a condition is "a statement of fact, or a promise, which forms an essential term of the contract".^[2] It is a term that differs from the other terms of the contract in that a breach or repudiation of the condition by one party discharges the other party to the contract from further performance of the contract.

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Footnotes

• ^[1]  In fact in some jurisdictions it is the triplet "terms, stipulations and conditions" that was or is still used. See Dick, Legal Drafting (1972), at 127.

• ^[2]  Guest, M.A., Anson's Law of Contract (26^th ed.) (1984) at 115.

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