Definition
A condition in fact is a condition expressly stated in a deed or other instrument — such as a feoffment, lease, or grant — in plain words or recognized terms of law. The condition appears on the face of the document itself, spelled out by the parties, rather than being implied by operation of law or inferred from surrounding circumstances.
In property and contract law, a condition in fact defines an event or requirement that must be satisfied for a legal obligation to arise, continue, or be discharged. Because the condition is express, its existence and terms are determined by reading the instrument — not by judicial construction of intent.
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Common Confusion
CONDITION IN FACT vs. CONDITION IMPLIED: These two categories represent the fundamental division in the law of conditions. A condition in fact (also called a condition expressed) is stated in the instrument. A condition implied arises by operation of law — courts read it into a transaction even though the parties did not articulate it. The distinction matters because the rules governing implication, performance, and excuse differ significantly between the two types. Historical sources, including Burrill, often treat "condition in fact" and "condition expressed" as interchangeable; modern usage tends to favor "express condition" for the same concept.
CONDITION IN FACT vs. CONDITION IN LAW: A condition in law (also rendered *conditio legis*) is one attached to a legal relationship by statute or common law rule, independent of the parties' agreement. A condition in fact flows from the instrument itself. Researchers working in older equity materials will encounter both terms and should not assume equivalence.
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Why It Matters in Research
The phrase "condition in fact" is largely a term of art in older English and American real property law, tied closely to the conveyancing vocabulary of feoffments, estates, and grants. Modern lawyers and courts rarely use this exact phrase, preferring "express condition" in contract and property contexts. Researchers working with pre-20th-century deed records, equity pleadings, or treatises on estates will encounter "condition in fact" frequently; researchers working with modern commercial contracts will almost never see it.
Several traps await the researcher:
First, the French-origin phrase *condition en fait* appears in some older authorities and is the direct source of the English term. Burrill notes this derivation explicitly. If you are reading French-language Louisiana materials or early Canadian common-law sources, you may encounter the French form where American sources use the English.
Second, Coke on Littleton (Co. Litt. 201a), cited by Burrill, is the foundational authority for this classification. Researchers tracing the doctrinal history should go to Coke directly, but be aware that Coke's analysis is organized around real property tenures that no longer exist as operative legal categories in most American jurisdictions.
Third, in modern evidence law, "fact" has a distinct technical meaning — adjudicative fact, legislative fact, noticed fact — that is entirely separate from the property-law usage here. Do not conflate a "condition in fact" (a property/contract concept about express conditions) with questions about what facts a court may judicially notice or what facts an expert may rely upon. The shared word "fact" is coincidental.
Fourth, the term appears almost exclusively in the passive vocabulary of historical legal dictionaries and treatises. If you are searching a corpus of 19th-century legal materials, searches for "condition in fact" will surface deed construction disputes, estate conditions, and conveyancing manuals. In 20th-century and later materials, the same legal concept will appear under "express condition."
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Historical Dictionary Support
Burrill's Law Dictionary provides the core entry, translating the French *condition en fait* and defining the term as a condition expressed in a deed in plain words or legal terms of law, citing Cowell and Coke on Littleton. This is a compact but accurate definition that maps cleanly onto the broader taxonomy of conditions Burrill develops — condition expressed, condition implied, condition in law — treating these as mutually exclusive categories within a coherent classification system.
What Burrill's entry does not address, and what later treatise writers filled in, is the functional significance of the express/implied distinction for the doctrines of substantial performance, excuse of condition, and constructive conditions of exchange. The bare definitional entry in Burrill is a starting point, not an endpoint, for research on how conditions in fact were treated in litigation.
Cowell's *Interpreter*, also cited by Burrill, reflects the even older conveyancing vocabulary and is most useful for understanding usage in 17th-century deed forms. Researchers should treat Cowell as a source for historical meaning, not as authority for any operative legal rule.
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Jurisdictional Note
The term "condition in fact" as a formal category belongs primarily to English common-law real property doctrine and was carried into American law through the same conveyancing tradition. Louisiana, with its civil-law heritage, uses a different vocabulary for conditions in contracts and transfers, though the functional concept of an express condition (*condition expresse*) is present in civilian doctrine. Modern Uniform Commercial Code jurisdictions do not use this term at all.
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Encyclopedia Cross-Reference
The Law Mind Civil Procedure & Evidence Encyclopedia — Judicial Notice of Adjudicative Facts — Rule 201 (for the distinct evidentiary meaning of "fact" in modern procedure, useful for distinguishing the property-law usage)
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