18/9/17 Types of Covenants (Part 1)
Covenants may be classified according to several distinct principles of division.
- Express or implied: the former being those which are created by the express words of the parties to the deed declaratory of their intention, while implied covenants are those which are inferred by the law from certain words in a deed which imply (though they do not express) them. Express covenants are also called covenants “in deed,” as distinguished from covenants “in law.”
- Dependent, concurrent, and independent: covenants are either dependent, concurrent, or mutual and independent. The first depends on the prior performance of some act or condition, and, until the condition is performed, the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time; and if one party is ready, and offers to perform his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. The third sort is where either party may recover damages from the other for the injuries he may have received by a breach of the covenants in his favor: and it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff.
- Principal and auxiliary: the former being those which relate directly to the principal matter of the contract entered into between the parties; while auxiliary covenants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it.
- Inherent and collateral: the former being such as immediately affect the particular property, while the latter affect some property collateral there to or some matter collateral to the grant or lease. A covenant inherent is one which is conversant about the land, and knit to the estate in the land; as that the thing demised shall be quietly enjoyed, shall be kept in repair, or shall not be aliened. A covenant collateral is one which is conversant about some collateral thing that doth nothing at all or not so immediately, concern the thing granted: as to pay a sum of money in gross, etc.
This is all for today. We’ll include more in our next Lesson.