What is the test for determining that a mortgage agreement does not require the borrower to obtain financing from a third party?
Alberta, Canada
The following excerpt is from Koster v. Smith, 1982 ABCA 293 (CanLII):
The appellant urged that the trial judge should have found this to be a “true” condition precedent as described in Turney v. Zhilka. We agree with the learned trial judge that it is not an external condition upon which the existence of the obligation depends. That is clear from a reading of the entire contract and from a recognition of the fact that the agreement does not demand mortgage financing.
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