Definition
A condition subsequent is a condition that, if it occurs after an obligation or estate has already come into existence, operates to defeat or discharge that obligation or estate. Unlike a condition precedent—which must be satisfied before a right or duty arises—a condition subsequent attaches to something already in force and cuts it off upon the occurrence of a specified future event.
The term operates in two principal legal contexts:
1. Contracts. A condition subsequent is a future event that, if it occurs, extinguishes an already-existing contractual duty. The duty is presently binding; the condition subsequent, if triggered, relieves a party of further obligation. Example: a settlement agreement that becomes void if a court later invalidates the underlying judgment.
2. Property. A condition subsequent is a condition annexed to an already-vested estate, such that the estate continues so long as the condition is not breached, but upon breach the grantor (or grantor's heirs) has the power—called the right of entry or power of termination—to reclaim the estate. Critically, the estate does not automatically end upon breach; affirmative action is required to enforce the forfeiture. Example: a grant "to the City of Springfield, but if the land ceases to be used as a park, then the grantor may re-enter."
Common Confusion
Condition subsequent is most frequently confused with two related concepts:
— Condition precedent. A condition precedent must occur before a duty or estate arises. A condition subsequent terminates a duty or estate that already exists. The practical distinction matters enormously in litigation: in contract disputes, the burden of pleading and proof traditionally differs depending on which type of condition is at issue—a party seeking to enforce a contract generally bears the burden of proving a condition precedent was satisfied, while a party seeking to avoid liability typically bears the burden of proving a condition subsequent was triggered.
— Fee simple determinable (property). Both a fee simple determinable and a fee simple subject to a condition subsequent are defeasible estates, but they differ in mechanics. A fee simple determinable ends automatically upon the happening of the limiting event (the grantor retains a possibility of reverter); a fee simple subject to a condition subsequent does not end automatically—the grantor retains only a right of entry (power of termination) and must act to reclaim the estate. Courts and historical sources do not always draw this line cleanly, and older deeds may use language that makes classification genuinely ambiguous.
Core Elements
In the property context, a fee simple subject to a condition subsequent has three identifying features:
1. A vested grant. The estate passes to the grantee immediately and in full.
2. A defeasance clause. Language stating that upon a specified event the grantor "may re-enter," "shall have the right to reclaim," or equivalent—distinguishing it from the durational language of a fee simple determinable ("so long as," "until," "while").
3. A right of entry (power of termination) in the grantor. The estate is not self-terminating. The grantor must elect to enforce the forfeiture; inaction may have consequences under applicable statutes of limitations.
Why It Matters in Research
Researchers face several navigational challenges with this term:
Condition vs. limitation. Historical sources—including Blackstone, Coke, and the dictionaries on this shelf—sometimes treat conditions subsequent and limitations as near-synonyms, or draw lines between them differently than modern doctrine does. Burrill's entry, consistent with Coke on Littleton, focuses on the defeasance of a vested estate but does not cleanly distinguish the right-of-entry mechanics from automatic forfeiture. Researchers using pre-twentieth-century sources should be alert to this conflation.
Contracts vs. property usage. The same phrase appears in contract law and property law with related but distinct technical meanings. A source indexed to one field may not illuminate the other. The condition subsequent in contracts is about discharge of obligations; in property it is about divestiture of title. Research into one context should be verified against sources in that field specifically.
Restatement shift. The Restatement (Second) of Contracts moved away from the terminology "condition subsequent," preferring to treat conditions primarily as precedent and to handle discharge separately. Post-1980 contract scholarship and some judicial opinions may use different vocabulary where older sources say "condition subsequent." This creates a vocabulary gap between historical case law and contemporary secondary literature.
Burden of pleading. In contract litigation, older common-law pleading rules placed the burden of raising and proving a condition subsequent on the defendant as an affirmative defense, while conditions precedent were part of the plaintiff's prima facie case. Modern pleading rules vary, but the underlying logic persists in some jurisdictions. This distinction can affect how complaints, answers, and jury instructions are drafted and how historical cases were litigated.
Forfeiture disfavor. Courts historically and modernly disfavor forfeitures. When language in a deed or contract is ambiguous between a condition subsequent (forfeiture upon breach) and a covenant (damages upon breach), courts tend to construe the instrument as creating only a covenant. This interpretive preference appears throughout the case law and shapes how historical sources discuss the construction of defeasance clauses.
Historical Dictionary Support
Black's Law Dictionary defines condition subsequent by its temporal relationship to the obligation—it is a condition "referring to a future event, upon the happening of which the obligation becomes no longer binding." This is the contract-law framing, emphasizing discharge of an existing duty. The entry is brief and does not develop the property-law mechanics.
Burrill's Law Dictionary provides the property-law definition more fully, drawing directly on Coke on Littleton and Blackstone's Commentaries. Burrill describes a condition subsequent as "a condition annexed to an estate already vested, by the performance of which such estate is kept and continued, and by the failure or nonperformance of which it is defeated." The illustrative example (a rent charge with re-entry on nonpayment) is classically feudal in character and reflects a period when conditions subsequent were tightly bound to the law of seisin and tenure. Burrill's framing assumes familiarity with estates doctrine that modern researchers may lack.
Both sources reflect an era when the contract/property distinction was less formally theorized than it is today. Neither anticipates the Restatement's terminological reorganization or the modern judicial preference for construing ambiguous language against forfeiture.
Jurisdictional Note
In property law, some states have enacted statutes limiting or extinguishing the right of entry (power of termination) if not exercised within a prescribed period, effectively converting an otherwise indefinite condition subsequent into a time-barred claim. The Restatement (Third) of Property (Servitudes) and various state statutes also affect how conditions in deeds are enforced. Researchers working with specific jurisdictions should consult local recording acts, marketable title acts, and any applicable statutes governing future interests.