Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. New York Court of Appeals 1995 1) Facts a) The Plaintiff, Oppenheimer & Co. (Plaintiff), entered into a sublease agreement with the Defendant, Oppenheim, Apel, Dixon & Co (Defendant). The agreement contained a provision stating “there would be no sublease between the parties unless and until plaintiff delivered to defendant the prime landlord’s written consent to certain tenant work.” This written consent was to be received by February 25, 1987. On February 25, the Plaintiff informed the Defendant’s attorney by telephone that the landlord consented to the tenant work. The landlord’s written consent was not received until March 20, 1987. On February 26, the Defendant informed the Plaintiff that the sublease agreement was invalid because the condition requiring written consent was not met. 2) History a) The Plaintiff brought suit arguing that it had substantially performed the required conditions. 3) Issue a) Does the violation of the express condition allow for a rescission of the contract i) Condition precedent: an act or event, other than a lapse of time, which, unless the condition is excuse, must occur before a duty to perform a promise in the agreement arises (1) “Unless and until the condition occurs” ii) The language of the case establishes an express condition precedent rather than a promise iii) The parties clearly intended to not form a contract unless and until defendant received written notice of the prime landlord’s consent on or before feb. 25, 1987. To explore forfeiture or undue hardship would only frustrate the already clear expressed terms. 4) Judgment: Reversed