Importantly, Bettini was meant to be in London ‘without fail’ 6 days before rehearsals, but did not arrive until 28 March, at which point he was ready to perform.

Blackburn J held the provision for arriving 6 days before was not a condition, and therefore breach of it did not give rise to the right to terminate.

The question raised by the demurrer is, not whether the plaintiff has any excuse for failing to fulfil this part of his contract, which may prevent his being liable in damages for not doing so, but whether his failure to do so justified the defendant in refusing to proceed with the engagement, and fulfil his, the defendant's part.

And the answer to that question depends on whether this part of the contract is a condition precedent to the defendant's liability, or only an independent agreement, a breach of which will not justify a repudiation of the contract, but will only be a cause of action for a compensation in damages.

Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and primâ facie a condition precedent, is not really vital, and may be compensated for in damages, and if they sufficiently expressed such an intention, it will not be a condition precedent.Lord Blackburn's statement in this case, that "it is quite in the power of parties to stipulate that some particular matters, however trivial they may be, yet shall, as between them, form conditions precedent" was taken up in a Scottish Court of Session case, Wade v Walden (1909) in circumstances considered "scarcely distinguishable" from the Bettini v Gye case.