*1 trial, correctly disposed of issue on court this City been The filed. Dist. v. authority Union School Council Jefferson Sunnyvale Cal.App.2d City provisions held of section 104], that the directory mandatory. were pursuant the second Plaintiff that the annexation asserts adopted (No. city 2034)
resolution failed because the proceedings prior (No. resolution while under resolution pending. correctly court were still The trial likewise disposed by finding issue had of this the council impliedly 1997. abandoned Resolution judgment ordering a writ of court trial compel mandate issue to of West Council Covina protest determine that had been made of one-half owners territory of the value of the annexed and to terminate proceedings is reversed, the matter remanded to superior with court directions writ of issue opinion party mandate in conformance with Each herein. shall appeal. bear its costs own on
Gibson, Traynor, Schauer, McComb, J., J., J., J., Peters, C. J., Peek, J., concurred. No. 21344. In F. Bank. Nov.
[S. 1963.] ELI et al., Plaintiffs, Ap M. WONG Cross-defendants pellants, v. Defendants, LORIS M. Di et al., GRAZIA Cross-complainants Appellants. *3 Ap- Wong Plaintiffs, for Cross-defendants
Charles F. pellants. Cross-complainants Defendants, M. Monell
Theodore Appellants. agreement which here that We hold TOBRINER, J. “upon building to commence of a lease provided that violate building” not does completion of said against perpetuities. (Civ. 715.2.)1 Code, The nature of the the transaction contemplated circumstances of shows that the completed building be within a reasonable time and years. reasonable time was less than Hence the statutory period. vest or fail within interest would either remaining upon appeal issues As to the we believe the trial property duty sprink- held that the of installation court of a system upon the lessees and that their ler fell refusal obligation perform constituted a breach. We therefore judgment except affirm the favor of the lessors as to a damages them, matter of awarded which we remand to minor trial court for clarification. background produced The factual which this action is complicated disputed. July 11, plaintiffs nor On neither entered into a written in which and defendants agreed plaintiffs period to lease for a defendants years building to be constructed defendants. The con- required to construct tract defendants shell lighting installations, facilities, building, exclusive toilet improvements. and other agreement provided: Paragraph 27 of the “Lessor [de- commence construction of a shall forthwith fendants]
building upon premises, the herein demised in accordance copy plans specifications thereon, with noted part plans and is attached hereto and made a hereof. . . . Said re- specifications complete, are and the Lessor shall not be pay any construction. . . . quired provide or additional upon approval forthwith Construction shall commence specifications plans and and shall continue ex- completed subject building peditiously completed, to ma- until said strikes, lockouts, governmental shortages, labor terial and/or beyond the control of Lessor. Said and all causes actions days completed ninety after a within shall County building permit has been from secured subject to plans specifications, Francisco said San delay contingencies shall mentioned, above and Lessee property personal shall 715.2 “No interest real 1 Section states: years vest, all, good after some than it must if at not later unless gestation any period being interest and at the creation of the life *4 applies. The lives limitation involved the situation to which the vesting govern must not so numerous or so be to the time selected unreasonably likely their deaths to be evidence situated of this section to It is intended the enactment difficult to obtain. against the American common-law rule make effective this State ’ ’ perpetuities. impede by making changes construction or alterations said being time understood that the consumed effect- therein, it ing any changes be to for shall added the time building. Upon completion completion of of said . . said . building Comple- Lessor cause a Notice of shall forthwith ... term this recorded, tion and the lease shall commence upon recording Completion____” of said Notice of an paid $7,875 to defendants as advance rental
Plaintiffs payment upon plaintiffs the execution of the lease. Later building required learned that the San Francisco code as prerequisite permit building of a issuance the installation sprinkler system costing of a approximately $9,500. Plaintiffs pay sprinkler sys- insisted defendants the cost of this tem; refused, contending plaintiffs defendants should bear burden. this negotiations plaintiffs
After fruitless parties, between the proceed notified defendants that their refusal with the system installation of construction of agreement. effected a breach complaint seeking Plaintiffs then filed a $7,875 paid rescission the return of the alleging plain- cross-complained, to defendants. Defendants jury, tiffs’ breach. After a trial without a judgment the court rendered damages defendants, awarding them on the $1,250. cross-complaint $9,500.14 plus The counsel fees of fixing plaintiffs $7,875 deposit, court with the credited judgment $2,875.14 Both owed under the net amount parties appealed. validity major issue the of the ease as its raises agree If perpetuities. under the rule if determine the court we must attack, ment survives correctly plaintiffs liable its breach and properly held damages. fixed comple- point, an “on Turning the first we note question present agreement, lease, such as the tion” the fact that lease from arises completion building, event delay term commences subject but expected occur in the near future construed to contingencies. If lease were from various until such interest “vesting” of the lessee’s postpone possibly delayed might vesting term, commencement lease, thus years execution of longer from the than under rendering invalid the lease purportedly against perpetuities. relatively new completion” represent leases “on
Since *5 530 question commercial development, validity their of has raised,
been far we so as found, only have five cases. Two Haggerty City cases, v. (1958) Cal.App.2d Oakland 161 of 957], Airways 407 and Southern Co. De [326 v. Kalb County Ga.App. 207], 101 689 S.E.2d have held [115 such against leases to be in perpetuities; violation the rule of case, however, upon ground latter was reversed that agreement management did not constitute a lease a but (Southern Airways County contract. v. De Kalb Co. 602].) 216 358 cases, Ga. S.E. 2d Three Isen v. Giant Food, (D.C. City Inc. 1961) Cir. 295 F.2d Santa Cruz of MacGregor v. Cal.App.2d Cal.Rptr. 727], 178 45 [2 Vaughn (Sup.Ct. Scotia, v. Constr. Co. Nova Halifax 1957) grounds (Sup.Ct. D.L.R.2d rev. on other Nova bank, Scotia, 1958) upheld D.L.R.2d have doing but leases advanced somewhat different reasons so.2 subject among great The rule been the of has debate schol suggested changes ars and writers; basic some have application.3 subjected The rule has been in some also states sweeping statutory point infra, reform.4 As we out has Food, law, Inc., applying Virginia 2 Isen v. held Giant lease gave present right possession, the lessee a vested interest in a future of against (295 p. perpetuities. and thus did F.2d not violate the rule at 138, supra; opinion, infra, p. Cruz v. Mac see at Santa 534. of Gregor building already involved a case in which the had been com pleted. distinguish Haggerty, stating The court relied this fact by completion part “Here the has been executed building by talcing possession the Gibsons and the of under the agreement by ground upon This Silvanes. eliminated the sole Haggerty based, proposed might case is never (178 54.) Cal.App.2d p. Vaughn built.” at Constr. Co. Halifax require performance construed the lease to within a reasonable time and necessarily years. held a reasonable time less than approaches completion’’ problem 3 In addition to those “on opinion, sweeping leases discussed in the a number of more reforms have suggested, doctrine, been such as the “wait and see” the extension of oy pres interests, presumptions to noncharitable establishment contingencies” years, that so-called “administrative will occur within against perpetuities the limitation the rule to non-commercial summary analysis For proposals, matters. of these reform see Property, Law, Perpetuities A.B.A. Section Real on & Probate Trust Legislation (2d Handbook and authorities there cited. We do intend, by opinion, imply disapproval pro of such reform posals, that, completion” but conclude far “on as leases are concerned, against per reasonable of the traditional rule petuities satisfactory will render results. e.g., 4 See Idaho Code section 55-111: “. .. there shall be no presumption person capable having any stage that a children at have writers many exceptions.5 Learned been corroded contingent concepts of vested questioned whether chapter 30, Supp.) (Smith-Hurd, life”; Stats. 111. Ann. adult property any vesting ... shall 153(a) limitation : “The section perpetui- against purposes regarded as deferred not be probate on the merely take effect is ... the limitation because ties apply- (1955) chapter 184A, “In will”; section 1: Ann. Laws Mass. validity perpetuities shall be ing of the interest ... existing such ... the termination of basis of facts on the determined lives”; ... would violate 2: “If an interest and section life estates or *6 any person contingent attain- is such interest the rule ... because ing contingency twenty-one, age age shall be in excess of the ... an 20, 1950) ...”; (Purdon title twenty-one Pa. Stats. Ann. reduced to by period expiration 301.4(b) “Upon allowed : section by against perpetuities than measured actual rather law rule common void”; any possible vested ... shall be Vt. interest not then events “Any 27, . would interest .. which section 501: Stats. Ann. title reformed, perpetuities against the limits within shall be violate closely rule, approximate intention of the creator of most of that Perpetuities Legislation generally A.B.A. Hand- ...” that interest. See 10-30; Lynn, Reforming 3, pp. book, supra, the Common Law fn. at Against Perpetuities Rule U.Chi.LJtev. 488. following provisions Legislature in 1963 the Civil added which, although they apply case, disclose a do not to the instant Code legislative liberally intent that section construed: 715.2 personal property is void 715.5: in real or either Section “No interest in of section of this if and to the or voidable as violation 715.2 code it reformed or construed within the limits of that extent can be give general section effect of the to the intent the creator interest general This section shall be whenever that intent can be ascertained. liberally applied such interest to the fullest construed validate ’’ consistent such intent. extent with ascertained personal property in Section 715.6: “No interest real or which must years, vest, all, if at not later than 60 after the creation interest ’’ 715.2 violates section code. determining validity “In Section 715.7: of a future interest in pursuant personal property code, real or to section 715.2 of this spouse person being individual described as in of a the com- at perpetuities period being’ mencement of a deemed in shall be a ‘life at or not time whether the individual described was in so then be- ing.” personal property, legal Section 715.8: “An interest in or real equitable, person being if persons vested and when there is a in could who convey being, irrespective or there are in of the nature of their respective interests, together convey simple who could a fee title there- to. ‘‘ invalid, part, merely An interest is not in in either whole or because the duration of the interest exceed the time within which future property title, interests must vest under this if vest, the interest must ” all, if at within such time. 5 Seefn. infra. .6 may properly applied interests to leases at all The ma jority legality completion” affirmed have “on leases
under the rule.7 Many against rigid factors militate operation mechanistic present drafting rule in Thus in case. the lease the parties anticipate application themselves did not rule; impact by otherwise would have avoided its forma provision.8 listic Indeed, the attention of the attorneys their possible first drawn appellate level Appeal.9 the District Court A noted authority pointed in this field of has that “. law out . . the learning is, perpetuities apart esoteric Rule monopoly days, from dim memories from student law yers Those members of the bar who deal trusts estates. including specialize corporate matters, commercial who intimately with or alerted to its leases, are familiar caprices.” Absurdity, Perpetuities: New Judicial (Leach, Statutory Correctives 73 Harv.L.Rev. subject court has 1322.) matter of estates this Even recognized attorney compre of an the excusable failure hend all of its ramifications.10 1956) (2d Smith, 1242; & 6 See Simes Future Interests (1962) 561, Notre Dame Law. 564-565. Leach, Perpetuities: Statutory Absurdity, & 7 See New Judicial Correctives (19 1318; (1959) 197; 73 Harv. L. 47 Cal.L.Rev. Rev. Hastings 439; (1962) 561; (1959) L.J. Law. Notre Dame 165; Jones, L. Rev. 66 A.L.R.2d 738-739. But see U.C.L.A. Note *7 Perpetuities Against It Oil and The Rule As Gas Affects California (1960) 261, 278; (1960) Interests 7 U.C.L.A. 39 L. Rev. N.C. L. Rev. 93; (1959) 170; 35 N.D.L.Rev. also 19 & see Wash. Lee L. Rev. 91. simply parties provided could 8 The have lessee’s term the would filing completion, commence on twenty-one of of not the notice “but later than agreement.” years from the this date of If more time were “twenty-one desired, parties specify, example, years could for the after X, Z,” Y, being healthy the death of the survivor of these infants living agreement. Nelson, Financing at time of See the the Commercial Estate, Security Development (Cont. Eeal in California Land & Ed. Bar 1960) 513, 532-533. against perpetuities brought 9 The rule issue was first to the attention question during argument of the a the oral before Dis Appeal. (See Wong (Cal.App.)
trict Court
of
Di Grazia
Cal.Rptr.
88.)
having
Defendants contend that
not
the issue
been
improper
trial,
Appeal,
raised
at
was
for the District Court of
improper
adjudicate
court,
would be
for this
to
that issue. We doubt the
validity
contention;
event,
any
against
in
this
the issue as
rule
perpetuities
public interest;
fully argued
isof
considerable
it has been
court; we,
dispose
accordingly,
before this
on its
the issue
merits.
Cal.Rptr.
10 Lucas v. Hamm
Cal.2d
592-593 [15
the modern rule (3 & The Law Case, Smith, in Simes folk’s was decided 1682. p. (2d 91.) The social at Future Interests property transactions cer- order of 1682 demanded as to its tainty ownership; fixation the idea of titles in title and ownership inchoate not or which remained which had vested purpose necessarily Indeed, basic was anathema. family dispositions, and that context the rule to limit was being plus years proper period served as of lives in a Only by an overextension of nineteenth measurement. later concepts apply rule century did the courts to commercial (See Leach, Perpetuities: Absurdity, New Ju- transactions. Statutory p. dicial and Correctives 73 Harv.L.Rev. 1322.) a which bear such birthmarks assume different as-
Rules applied pect are to contracts leases in a modern when upon planning society economic structure rests whose life whose blood is future and credit. Since society tight perpetuities born in which extolled facilely ownership operate property, of inherited real it does not dynamic agreements today’s to commercial as being years, economy. “The period lives admirably regard gift family with transactions works significance in world of commercial purposes, has no Perpetuities in a Nutshell 51 Harv. (Leach, affairs.” 638.) L.Rev. Certainly interpret our function rule so is anomalies. A lease to commence com- create commercial arrange-
pletion is common business leased provision clause a standard of leases ment.11 Such being centers, which have been and are constructed shopping *8 supra 532. p. note 11 Nelson, throughout country ;12 parties such transactions do suspect the rule
not agreements; will be extended to invalidate their attorneys even the who draw the leases ex- Surely cusably anticipate application. such the courts do by imported not seek to fide transactions invalidate bona legalisms. of esoteric Our task is not to block the pathway defining by guideposts it, but to clear it business that are reasonably expected. pointed to be As was out in “ appli- 200: strict and literal Cal.L.Rev. [A] Against Perpetuities cation the Rule to a lease of this purpose can nature do little to serve the basic behind the rule placing unnecessary only can result burden on the parties accepted to an commercial transaction.” We there- propose apply rigid fore do not or remorse- past manner13 less characterized some decisions; instead interpret reasonably, light we shall seek to objectives it in the of its society. the economic conditions modern specific We turn to the relevance of the rule to the facts of conceivably We could case. construe the instant trans action as creates a vested one which interest in a future term principle agreements invoke the and vested future interests which establish escape rule, despite the uncertain ty or (see remoteness the commencement of e.g., the term 732; Superior (10th Francis v. Oil Co. 1939) 102 F.2d Cir. 733.) Note A.L.R.2d technique Indeed this for sav ing completion” “on leases utilized in Isen v. Giant supra (D.C. Food, Inc., 1961) 295 F.2d Cir. and to some supra extent in MacGregor, Santa Cruz v. (1960) 178 Cal.App.2d 45, 54. Yet the here drew their regard legal niceties; they surely without such did not present mean to differentiate between a interest in a lease commencing in the future and lease which takes effect in the future. We do not believe that our decision should rest technicality, contrived particularly as the distinc rights tion vested and between unvested is at best a confused one.14 construe the We document before us as a lease in 12 Tulley, Shopping Lease, Security Center in California Land & Development, pp. 842, 850. 13 Gray, Against Perpetuities (4th 1942) p. The Rule 599. supra, concepts 14 As we noted is not clear that of vested and contingent properly applied any ease, can interests In leases. these concepts very (see generally Simes, Policy are not useful Public (1955) p. 68; Schuyler, Against The Dead Hand Should the Rule Perpetuities 683, 687) particu Discard its Vest? 56 Mich.L.Rev. larly present practical difference, in eases such as one little
535 completion the upon vests the interest which lessee’s building.15 in ease of told, arise the contingencies, arewe Four may building not be possibility produce
lease to
first, the
period of the statute:
21-year
completed within
per-
more than that
might consume
process of construction
ap-
might
building
not be
plans
for the
second,
iod;
per-
expeditious
exceptions
excuse
third,
proved;
beyond
statutory pe-
might delay completion
formance
riod;
might
during such
building
issue
permit
not
fourth, a
to
order
possibility
detail in
each
period.
examine
We
conjectures
from two incorrect
arise
such
demonstrate that
involving
against per-
(1)
the rule
assumptions:
that eases
special legal preserve in which mechan-
petuities
a
constitute
accepted
condoned,
which the
and into
will be
results
ical
enter;
(2)
cannot
construction
principle of reasonable
transgress
does not
though
agreement
its terms
an
even
predicated
a
be
against perpetuities,
violation
be
will
broken and
possibilities that the
on
unwilling
rights.
their
to enforce
argument
process
con
First. Plaintiffs’
21
might
completed
years
more than
be
after
struction
requirements
fails
the face of the
the interest
creation
begin
agreement that defendants
construction “forth
approval
completed plans,
upon
and
“continue
with”
building
completed.
until the
The use of
expeditiously”
expeditiously,”16
and “continue
“forthwith”
terms
against perpetuities
problem,
an
exists between
of the rule
exclusive
contingent
right
event and
vested
to a term
on a future
interest
contingent
a future event.
on
15 Alternatively,
document
to
could construe the
be
contract
to
we
applies
lease,
against perpetuities
if
rule
to
contracts
since the
(D.C.
specifically
(see
Food,
Isen v. Giant
Inc.
Cir.
can
enforced
136, 137),
permits specific
1961) 295 F.2d
and California law
enforce
property
(Pike
Hayden (1950)
lease
v.
97
of contracts
real
ment
578]).
Cal.App.2d 606
P.2d
[218
following eases construed terms of
16 The
the involved instruments
vesting
require
within a
on
reasonable
time and
that basis avoided
finding
against perpetuities:
Food,
a violation of the rule
Isen v. Giant
(D.C.
(lessor
required
"diligently
Inc.
Plaintiffs for com- pletion applied within a to avoid a reasonable time cannot against perpetuities. position violation of the rule This finds support Cal.App. Haggerty Oakland rejected 957], 2d in which the court argument “deceptively simple” “unsound,” similar permitted “The asserted that courts are not relax the against perpetuities. The rule itself no ... contains ex- ceptions, and courts should create them.” dissenting opinion points in Haggerty, however, out *10 majority ruling weight that does not accord with the of authority. (Pp. 423-424.) Not have the courts evolved exceptions rule,19 performance to the but as the doctrine time excep- within a reasonable constitutes in itself one unanimously agree pro- tion. and scholars almost Courts vesting contingent upon performance visions which make time, equivalent a reasonable phrase, within some do not light “if, surrounding violate the rule in the circum- stances, as a matter of construction ‘a reasonable time’ is possible”); Brandenburg (1885) “as res soon v. Thorndike 139 (trustees 102 N.E. [28 Mass. to distribute res "at such time ... as 575] may expedient practicable”); Vaughn ... be found v. Halifax (Nova 1957) 431, (buildings 9 Constr. Co. Scotia D.L.R.2d 440-441 may be”). practicably be commenced "as soon as agreement requires completed 17 The also construction within days building permit require 90 after the is We obtained. discuss this point. our ment under fourth agreement specify performance due, 18 If an fails when is it is performance place assumed that must take within "a reasonable time.” generally Cal.Jur.2d, Contracts, §§ 12 See 160-161 and cases there cited. exception 19 An allowing to the rule which has the effect of an interest beyond period would, remain course, present uncertain the rule of dangers fettering property. of Nevertheless, extensive of excep several type established, gifts tions of this charity, are rights well such as of entry, possibilities reverter, resulting trusts, running of and covenants opinion with the land. The "reasonable time” rule discussed is a different, type exception. Although and less concept extensive avoids the invalidation perpetuities, document as violative of interprets it so as to ensure that the interest period exceptions will vest or fail within the rule. Other of this type ambiguities against finding are the rule that should construed against perpetuities (see opinion p. 539) violation of the rule infra relating closing gifts. and certain of the rules to the of class
537 Smith, years.” (3 & twenty-one Simes necessarily less than Many (2d 1956) p. 122.)20 1228 at ed. Future Interests presume time” is less fact, that a “reasonable courts, any event, a time In reasonable period the rule.21 than light circumstances,22 transaction, in the present in the years. period than 21 We necessarily far less abe must City Oakland Haggerty v. accept portion cannot extent, position and, to that contrary expresses a disapproved. if in this connection contend further
Plaintiffs
breach,
from defendants’
results
delay
construction
legally
agreement,
terminate
cannot
defendants
exercise
right,
choose
possessing such a
plaintiffs,
Accord,
136,
(D.C.
1961)
Food,
v.
F.2d
Inc.
Cir.
295
Isen Giant
20
(1958)
407,
Cal.App.2d
138; Haggerty
161
423-424
Oakland
v.
197;
J., dissenting);
(1959)
(Bray,
47 Cal.L.Rev.
957]
[326
Hastings
439;
165;
(1959)
(1959)
Fran
6 U.C.L.A. L.Rev.
see
10
L.J.
(10th
1939)
732,
Myers
735;
Superior
102 F.2d
v.
v.
Oil Co.
Cir.
cis
925];
(1945) 208 Ark.
S.W.2d
Kirkland v. Odum
[186
505
Hardin
706];
(1905)
(1923)
86
10
131
S.E.
Gex v. Dill
Miss.
[118
[38
156 Ga.
Vaughn
(Nova
193];
v.
Scotia
Constr. Co.
D.L.R.
So.
Halifax
(1962)
561;
440-441;
Gray,
431,
37 Notre
2d
Dame Law.
cf.
Rule
(4th
1942) §§478, 480,
(“reasonable
Perpetuities
Against
49
’’
powers
appointment).
time doctrine
(D.C.
App.
1933) 65
v.
Cir.
F.2d 208 [62
Shoemaker Newman
21 See
1034];
(1893)
299,
120, 39
v. Booth
63 Conn.
306-
D.C.
A.L.R.
Belfield
11,
587-588];
585,
Kamp
395 Ill.
21-22
Harrison v.
A.
[27
261, 267];
N.E.2d
Smith v. Renne
Ill.
[46
N.E.2d
[69
575];
Brandenburg
587];
to enforce their argument plans Second. that the for the build ing might approved statutory period not be within can yet stand if the lease void for uncertainty; it is clear respect. ly provides valid The lease that construction “upon approval completed shall forthwith commence plans specifications.” “completed Apparently plans specifications” plans improve refer to the which include the by plaintiffs, “approval” ments be added refers approval by parties.25 both approval Plaintiffs claim this may forthcoming. not be plaintiffs’ argument correct, If were would uncertainty party be void for since either could withhold his approval plans (Kerr and forestall construction Glass Mfg. Corp. Corp. Elizabeth Arden Sales (1943) 61 Cal. App.2d 938]). party Yet neither makes such an attack it. Nor could such attack Only a very succeed. conceivably ground narrow area could become possible uncertainty disagreement: plans future called for by argument Leach, Perpetuities: 23 For discussion of this see New Ab surdity, Statutory Judicial & Correctives 73 Harv.L.Rev. 1322; Hastings 439, 440; L.J. N.C.L.Rev. 96. 24 Consider, example, typical being trust ease lives plus years. many In possibil will eases there exist a slim but definite ity period may unlawfully that after the of the trust has run the trustees res, sue, refuse to surrender the beneficiaries decline to dis enforcing rights, able themselves from their or even consent to the breach possibilities thought of the trust. Such never been have sufficient to in perpetuity. trust validate the as a provision Appeal 25 The was so construed the District Court of (Wong (Cal.App.) Cal.Rptr. 88). v. Di Grazia
539
parties’ assent to the
“complete,” and the
paragraph 27 are
paragraph
plans;
approval
those
agreement
constitutes
municipal regulations.
comply with
plaintiffs to
obligates
7
lies in defendants’
disapproval
only possibility
Hence the
municipal requirements. But
rejection
plans
which meet
plans
approval
unreasonably
withhold
defendants cannot
specifications.26
and
ground
disagreement in an otherwise
possible
A
minor
uncertain.
complete agreement will not render
agreement are
left for future
the matters
“Where
accept
a reasonable
party will be forced
unessential, each
(City
Los
point.
...”
of the unsettled
determination
Superior
423, 433
Angeles
(1959) 51
[333
v.
Court
Cal.2d
Salisbury
Roy
held
v.
As this court
745].)
P.2d
the law does
176,
P.2d
“...
21
184
(1942)
[130
706]
Cal.2d
of contracts be
against
destruction
not favor but leans
feasible,
if
so construe
uncertainty;
will,
cause of
carry
intentions of
agreements
the reasonable
into effect
’’
parties
can be ascertained.
if that
party here
that neither
fact of the matter is
The
agreement to effec
construe the
the courts cannot
claims that
enforce the
intent of the
the reasonable
tuate
agreement.
although
rather that
courts
contention seems
agreements to
for uncer
an invalidation
construe
avoid
agreements
they may
similarly
to avoid
tainty
construe
against perpetuities. Although
violation of the
times,
in their
have been relentless
courts,
against perpetuities,
have seldom
relent
carried
the rule
cases,27
Both
California
lessness
such extremes.
majority
states,28 hold that a
of other
document
those of
Royce (1960)
659,
Cal.Rptr.
v.
53 Cal.2d
672-673 [2
Leboire
26 Cf.
authorities there cited.
513]
349 P.2d
(1960)
Cal.App.2d 180, 190
182
[6
Dist. v. Jones
27 Alamo School
(1922)
Cal.Rptr. 272]; Berry
Cal.App. 378,
v.
382-383
P.
[205
Lebus
§3451;
(1960)
Cal.App.2d
471];
Code,
Civ.
Oliver
Schene
See
Cal.Rptr.
(1936)
v. Michel
See
Sheean
461].
480-482
also
[6
provi
127],
court refused to
Cal.2d 324
where the
construe a
prevent
perpetuities
in a
violation of
sion
will
proposed
would
because the
construction
defeat
intention
just
defeat
claims of creditors.
testator
would
(Casner
28 Rest., Property
375;
Property
Law of
American
1952) pp. 118-122; Simes,
Policy
Public
and the
ed.
Dead Hand
(2d
Smith,
1288-1289;
74;
p.
§§
&
Future Interests
3 Simes
Perpetuities
657-659;
Leach,
in Nutshell
51 Harv.L.Rev.
Reforming
Against Perpetuities
Lynn,
Rule
the Common Law
488, 492-499; Schuyler,
Against Perpetui
Buie
Should the
U.Chi.L.Rev.
interpreted if
should be
feasible to avoid the conclusion that
*13
against perpetuities.29
it violates the rule
agreement provides
Third. Because the
that the les
obligation
building expeditiously
sor’s
to construct
the
is
“subject
strikes, lockouts,
shortages,
to material
labor
and/or
governmental
beyond
causes
the control
the
actions
all
might
Lessor,' plaintiffs contend that such events
excuse the
performance
period
years.
21
lessor from
for
excess of
parties
clause, however,
This
does not alter the fact that
completed
contracted for
to be
in a reasonable
time,
years,
that such reasonable time
far less than
is
complete
expected
that failure to
construction within the
permit
parties
agreement.
will
time
to terminate the
legal
simply
clause
alters the
characterization
a failure to
complete
contingencies
construction in the
mentioned from
may
duty,
which
that
a breach
the lessor
be held
responsible,
frustration,
for which
that
a commercial
party
responsible.30
may
neither
be held
building may
Plaintiffs contend that
not
Fourth.
building permit
until
constructed
is obtained and that
permit may conceivably
period
such
not issue within the
Food,
supra,
In Isen
Inc.,
(D.C.
v. Giant
rule.
Cir.
involving
136,
completion
295 F.2d
a case
an “on
lease” in
zoning
which construction turned
the issuance
aof
var
iance,
stated,
think,
agree
however,
the court
“We
that the
required
zoning
purposes,
ment
tained
that
commercial
if ob
all,
must be obtained within
time
a reasonable
(1958)
683, 700-701;
e.g.,
ties Discard Us Vest?
56 Mich.L.Rev.
see
Hendry (1940)
653,
375, 383-384];
Willis v.
127 Conn.
670-673
A.2d
[20
(1893)
299,
585,
v. Booth
586-588];
Conn.
304-308
A.
[27
Belfield
County
Worcester
Trust Co. Marble
v.
Mass. 294 [55 N.E.2d
446]; Brandenburg
;
v. Thorndike
Defendants the refusal of the permit pretrial an amendment court order to trial Although larger loss. show a rental amount defendants ruling argue upon misconception rests the role ruling quite pretrial order, properly could stem unnecessary35 from the fact that the amendment was and the sought damages speculative.36 too secondly they point out that Defendants incurred addi engineering expense consulting tional fees and for necessity proof situation, Witkin, 34 On an offer of see (1958) § California Evidence 713. $25,000 original claim of loss 35 The of rent remained in the $8,100, pretrial The lesser amount order. defendants believed proof they sought pretrial sustained and which to insert larger order, $8,100 included in the sum. The court could award the amending pretrial figure without order. damage trial "that 36 The court found other claimed items of are speculative, damage remote not items too are because cross-complainants were of value subsequently connection with the them." As erected to defendants’ claim for loss of presented by rental, adequate the evidence defendants at trial was not *15 damages any trial court to enable the determine under of the avail might theories. Defendants have able been entitled to the difference plaintiffs under their between the rent due lease with and the reasonable property, proof presented but no value of rental that the rent represented under the new lease the reasonable rental value. Alterna might tively, defendants have claimed the differential rent between plaintiffs lease, obviously adjustment their lease with and the new but compelled by would have been fact the new lease involved a building, might different plain and have differed from the lease which tiffs in than presented terms other the amount of rent. No evidence was making adjustments assist the court for such differences. Conse quently, approximates loss whether the actual to defendants their claim largely speculation. $75 a month is a matter of may dis court have charges trial which the contractor’s per Pretrial rule pretrial order. because allowed prevent pretrial at trial order amendment of mits language reposes in the trial injustice.’’37 Such “manifest present in the large discretion, which was exercisable judge a the trial whether not disclose record does The circumstances. foreclosed pretrial order amendment of court believed court exercised discretionary relief whether such re We therefore rejected defendants’ claim. discretion and may more in order that it trial court to the mand this ease discretionary authority. time At same clearly exercise its lease, paragraph 13 of the pursuant court, the trial attorney’s for the fees compute such additional award and court determines defendants prosecution appeal as the of this should receive. application of the rule issue, the to the main As only by it could invoke conclude that we
perpetuities, we from the rule arose conceiving application of the certainly for although called conjecture the contract years, it would be performance a time for less than within aggrieved party would not enforce within broken and the non- that out of the ashes time. We must assume arises, performance nonenforcement the contract there against perpetui- rule phoenix, the new form the like the obligations should be obliterated We do not believe ties. conjecture. judgment denying portion recovery defendants’ The engineering consulting fees, expenses for additional charges, for contractor’s is reversed the ease re- opinion. proceedings with manded for further consistent respects judgment is The In affirmed. trial court all other attorney’s to defendants such additional fees shall award appeal prosecution of this as the court determines de- respective parties should bear fendants their own receive. appeal. shall on costs J., J.,
Gibson, Traynor, J., Schauer, McComb, J., C.
Peek, J., concurred. filed, pretrial “When conference order 37 Pretrial rule 216 states: and, part record the case where inconsistent with
becomes a subsequent pleadings, course of the case unless modified controls the prevent injustice. (CaL trial ...” Buies of at or before manifest Superior Courts, 8.8].) Court, [formerly Rules for rule *16 544
PETERS, J. I dissent. majority considered by was Every argument advanced Cal.App.2d Haggerty Oakland, 161 rejected in v. by disapproved the ma ease, That now 407 P.2d [326 957]. jority, my opinion, was and sound. are, first, majority opinion The in the two basic fallacies rule necessarily or not the that it holds that whether upon the apply depends perpetuities not should or should was probabilities when the lease they existed reasonable secondly, it developed and, by afterwards, executed, or what of modern the needs holds the rule is outmoded for application. Both society strictly should be limited premises wrong. of these are majority opinion talks about the assumed evils of a “rigid operation rule,” mechanistic about the “eso- learning” surrounding teric it, only existing about the rule days,” in the “dim memories from student about the reluc- majority apply “rigid tance of facts,” rule to the originating during instant about the rule period English history” “mercantilists fitted for the 1682,” “social order of about “overextension” during century the 19th transactions,” to “commercial inapplicability about theory of the rule to the society,” needs of “modern and then concludes that since against perpetuities “the rule society born in a tight ownership extolled the of inherited real property, it operate faeilely not agreements does as to commercial in to- day’s dynamic economy.” majority Then they state that propose “do apply rigid the rule in the or remorseless by manner past characterized some decisions,” and that “interpret reasonably, light will in the objectives of its and the economic society.” conditions of modern Thus do majority by process of “construction,” cavalierly large body overrule law, public policy defeat the set state forth section 715.2 of Code, adopted the Civil not in 1682 but in 1951.1
Leases, unquestionably, fall within requiring section, stating rule, 1 That after “It condueles: is intended the enactment of this section to make effective in this State the Ameri ’ ’ against perpetuities. can common-law rule This section was added to (Stats. 1951, 1463, p. our 2.) code in 1951. ch. This new section existing law, public policy reenacted and carried out the set forth in our (Estate Sahlender, Cal.App.2d state Constitution. P.2d [201 69].) period. (Epstein prescribed vest within the estates to Dallapi v. Cal.App.2d 318]; P.2d Zahloute, 99 [222 collected 646]; Cal.App.2d cases Campbell, *17 Perpetuities 34, Am.Jur., Alienation, and Restraints on § p. 718.) Code, 78. See also Civ. §§ recognized imply that hold or The authorities this field the completion, a until because of lease not to take effect completion date, uncertainty (Simes the rule. violates Smith, (2d 1956) The of Future ed. Law Interests Against 1242, p. Perpetuities (4th ed. Gray, The Rule 153; § 1942) p. 353; Property (3d 1939) 2 Tiffany, Real ed. § p. 171.) majority opinion necessarily proposi The the stands depends upon tion applies that whether or not the rule the probabilities. proper Gray not reasonable That is the test. As points enough contingent out: is not event “It happen, probably happen, or even that it within will against Perpetuities; possibly limits of the Rule if it can happen beyond limits, those it interest conditioned on is Many too remote.”2 cases have established rule that probabilities question. only have no relevance to the The question presented in such cases whether is there is barest possibility at the time the creation the interest might required not vest within the time, happens and what totally (Estate later is Johnston, irrelevant. 1]; 47 Cal.2d supra, Estate Sahlender, Cal.App.2d p. at 348; cases Cal.Jur.2d, Perpetuities collected 38 Re Alienation, 29,p. 481.) straints on majority opinion disregards The these well-settled It rules. necessarily proposition stands for the that whether or not applies depends rule possibilities not on they as existed creating the time the instrument executed, interest was probabilities but they on the reasonable as then existed. Thus majority do the treat the rule as if it were a rule of construc- applied questioned tion to be to the interpreting document majority only disregard it. The not seriously question but by Gray rule forth set that “The Perpetuities Rule is not construction, a rule peremptory but a command law. not, It like a rule of test, construction, more or less artificial, object determine intention. Its tois defeat inten- every provision tion. Therefore a in will or settlement is to be construed if the Rule did not exist, as and then provi- to the Against
2 Gray, Perpetuities (4th The Rule pages 207-208. remorselessly applied.”3 the Rule is to he sion so construed (Italics added.) has here- majority clearly the rule as it The have modified broadly questioning the by uniformly construed, tofore been applied”
prior “remorselessly it, cases have outgrown, and should broadly hinting that has been cases, because disregarded except limited number of in a doing has today’s economy. court of the nature of In so placed heavy 715.2 of Civil hand indeed on section Legislature as people Constitution, and the Code. 715.2, 1951, by passage determined late section might why, if the public policy of this It well be asked state. operate present Legislature rule in our did not want the why, 1951? if the did it And economy, reenact apply Legislature 715.2 did not intend that section should completion” leases, “on has it not amended that section Haggerty Oakland, supra, since 1958 when majority disre- Cal.App.2d was decided? The they gard public policy section, set forth in that but in a where it certain, confuse the law field should what, *18 challenge litigation encourage now, until well settled law. judgment.
I reverse the would Against Perpetuities 1942) page (4th 3 Gray, 599. Rule