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Part I The Obligation to Perform On Time, 1 The Proper Time for Performance

John E. Stannard

From: Delay in the Performance of Contractual Obligations (2nd Edition)

John Stannard

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

(p. 3) The Proper Time for Performance

1.01  Delay can be defined in various ways,1 but a useful starting point is Cable (William) Ltd v Trainor,2 where the New Zealand Court of Appeal had to define the word in the context of the statute of limitations.3 In the words of Shorland J:4

The dictionary meaning of the noun ‘delay’ is ‘the putting off’ or ‘the deferring’. These latter words, in our opinion, in their ordinary meaning connote postponement of performance of some act or step beyond the point of time when the act or step should have been performed.

In the contractual context this means the postponement of performance beyond the point of time when the obligation in question should have been performed.5 So the first question is whether the proper time for performance has passed.

(p. 4) 1.02  In many cases the time of performance is easy to determine. However this assumes both that the contract has set a time for performance of an obligation, and that such an obligation exists in the first place. But neither of these factors will necessarily apply. Sometimes the contract may provide for performance but may leave the time unspecified, in which case a reasonable time for performance will have to be implied.6 In other cases questions of delay may arise even where there is no obligation to perform. This may seem paradoxical, but take the case of a unilateral obligation, as where an insurance policy gives an option for renewal provided that the premium is paid by the set date.7 Here the insured person has no obligation to pay the premium at all; he or she may legitimately decide to let the policy lapse. However, should the insurer refuse to renew on the grounds that the premium has not been tendered by the due date, the issue may arise as to whether performance has been rendered on time.8 For this reason, we must address the issue of unilateral obligations of this sort even though they do not raise issues of timely performance in the strict sense.9

1.03  The time for performance can be determined in a number of ways. Thus, for instance, section 14(1) of the Supply of Goods and Services Act 1982 refers to three possibilities; time can be fixed by the contract, or left to be fixed in a manner agreed by the contract, or determined by the course of dealing between the parties. Often an exact time or date is set for performance, but there are other possibilities; for instance, the contract may use expressions like ‘as soon as possible’,10 or ‘immediately’,11 or ‘with all reasonable dispatch’,12 or it may specify for performance by the promisor at a certain rate.13 Finally, the contract may be (p. 5) silent as to time. There are four situations here which merit further discussion. These are: (1) where a time is set by the contract; (2) where the contract is silent as to time; (3) where performance is due on demand; and (4) the problem of timely performance in unilateral contracts.

A.  Where a Time is Set by the Contract

1.04  Where a time is set for performance, the promisor is bound to perform at that time, and will be liable for breach of contract if he or she fails to do so without good excuse. It does not matter whether or not time is ‘of the essence’ with regard to the obligation in question.14 It was thought in the past that time stipulations were only binding when time was of the essence, and that otherwise the promisor only had to perform either at the time set or within a reasonable time thereafter.15 This analysis suggested that in most contracts time stipulations did not mean what they said.16

1.05  However, it was argued that this proposition was based on a misunderstanding.17 The common law and equity did not differ in their approach to the construction of contractual terms.18 A time stipulation, like any other, was a term of the contract, and action could be taken if it were broken. Where the common law and equity differed was in the matter of remedies. The common law, or so it was thought, would generally allow the promisee to terminate in the event of late performance by the promisor.19 Equity, however, would relieve against the harshness of this in suitable cases by granting a decree of specific performance to the promisor, coupled if necessary with a common injunction (p. 6) to restrain the promisee from taking steps to have the contract set aside at law.20 To that extent, and that extent only, was the time stipulation ignored by equity.21

1.06  The matter was finally cleared up by the House of Lords in Raineri v Miles,22 a case involving a chain of property transactions. Because of the delay of one Wiejski in completing the sale of his house to Miles, Miles in turn became unable to complete the sale of his own house to Raineri, and was accordingly held liable in damages. Subsequently Miles brought third party proceedings seeking to be indemnified by Wiejski. The contract between Miles and Wiejski had provided for completion ‘on or before’ 12 July 1977, but it was agreed that though Wiejski had failed to meet this date time was not of the essence and completion had eventually taken place. So the question arose directly whether a party who failed to perform at the set time was liable in damages in a case where time was not of the essence.

1.07  The House of Lords, by a majority of four to one,23 held that Miles had a valid claim. Whether time was or was not of the essence did not affect the promisee’s right to damages, and any statements to the contrary should be disregarded. In the words of Lord Edmund-Davies:24

The former courts of equity did not rewrite contracts, nor did they hold that a man who had broken his word had kept it. No case has been cited to your Lordships where they denied all relief to the petitioner who proved that the respondent had delayed in the due performance of his contract. But what they did in proper circumstances was to ameliorate the asperities of the common law. They differed from the common law in the granting of remedies and not in the recognition of rights, and, so far from altering the substantive common law, they followed it and applied it in their own courts when they thought it right to do so.

1.08  The effect of Raineri v Miles, which has been followed around the common law world,25 was to eradicate an heretical doctrine from the law. It is now clear that, whether time is of the essence or not, failure to perform on time by the promisor (p. 7) is a breach of contract for which damages can be obtained. The question whether time is of the essence is crucial in determining the remedies available to the promisee for the promisor’s delay in performance – in particular, whether the promisee can terminate performance and treat the contract as repudiated.26 But it does not affect the obligation of the promisor to perform on time, or the right of the promisee to claim damages if this is not done.

1.09  Of course, the mere fact that a time is mentioned in the contract does not necessarily mean that the promisor is bound to perform then and no later. For instance, the time in question may be intended merely as an estimate, as where in a charterparty a ship is given an ‘estimated time of arrival’,27 or is said to be ‘expected ready to load’ on a certain date.28 Here the promisor is not bound to have the ship ready on that very day; it is enough if he or she honestly expects that the vessel will be ready as stated, and that this expectation is based on reasonable grounds.29

1.10  In other cases, what may appear at first sight to be a deadline may be treated by the courts as no more than an estimate. Thus for instance it is not uncommon for building contractors to put forward programmes or schedules to the owner or architect showing completion some time ahead of the official contract date.30 These may have been approved by or on behalf of the owner, and may even be expressed so as to override the general contract terms.31 However, such provisions have been held to constitute no more than a target or guide,32 and it has been said that in the absence of clear words they should not be interpreted as altering the substantive rights or obligations of the parties.33

(p. 8) B.  Where the Contract is Silent as to Time

1.11  Where the contract is silent as to the time for performance, the law implies a reasonable time. We shall now consider the scope of this obligation before going on to look at what amounts to a reasonable time in any given case.

(1)  Reasonable time at common law and by statute

1.12  The obligation to perform within a reasonable time has been implied by the common law into contracts of all kinds:34 the sale of goods,35 charterparties,36 building contracts,37 conveyancing,38 carriage of goods by land,39 the exercise of options,40 contracts for services,41 bailment42 and even (when these were legally enforceable) contracts to marry.43 The law is said to imply such an obligation in every case where a party to a contract undertakes to do an act, the performance of which depends entirely on himself, and the contract is silent as to the time of performance.44

(p. 9) 1.13  In most cases, however, the obligation to perform within a reasonable time is imposed by statute. We must distinguish here between contracts for the sale of goods and contracts for the supply of services, and also, in relation to the sale of goods, between consumer contracts and other contracts.

1.14  In the ordinary run of cases, a seller’s obligation to deliver the goods and the buyer’s obligation to accept delivery are governed by the Sale of Goods Act 1979, which codifies the common law rule that these obligations must be performed within a reasonable time if the contract is silent as to time.45 However, in relation to consumer contracts section 28(3) of the Consumer Rights Act 2015 specifies that the goods must be delivered without undue delay, and in any event, not more than 30 days after the day on which the contract is entered into.46

1.15  Contracts for services, on the other hand, are covered by section 14(1) of the Supply of Goods and Services Act 1982, which reads as follows:

Where, under the contract for a supply of a service by a supplier acting in the course of a business, the time for the service to be carried out is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a reasonable time.47

A contract for the supply of a service is simply defined as a contract under which a person (the supplier) agrees to carry out a service.48 What is a service? The word is capable of the widest meaning,49 but the Act itself does not give any definition except to exclude contracts of service and apprenticeships,50 and to say that a contract is not prevented from being one for the supply of a service by the fact that goods pass under it.51 There is a dearth of case law on the topic, though the provision has been held to apply to a number of situations including the provision of training for the employees of a company,52 the obligation to submit a dispute (p. 10) to arbitration53 and the supply of a computer software package.54 It has been said to apply to building contracts,55 but not to a contract for a tenancy.56 Definitions given in other contexts are not much help.57 However, there is nothing to indicate that section 14(1) of the 1982 Act is confined to consumer transactions,58 and in the end there is no reason why it should not be interpreted in a broad manner, given that it merely codifies the common law.

(2)  What constitutes a reasonable time?

1.16  Reasonable time is said to be a question of fact, both at common law and by statute.59 Thus the question whether performance had been rendered within a reasonable time was in the past one for the jury and not the judge to decide.60 Now that the jury has virtually disappeared from civil cases, the difference between questions of law and questions of fact has become much less significant.61 Even so, the question of what makes for a reasonable time is still not one which it is possible to answer with any great precision, not least because the answer depends on the circumstances of the particular case. However, there are a number of factors that have been considered relevant by the courts, and which it is worth looking at more closely in this context. We must distinguish here between those factors which were in existence at the time when the contract was made, and those which came into existence at a later stage.

(a)  Factors in existence when the contract was made

1.17  The first principle is that the courts must look at the circumstances of each case in so far as they were within the contemplation of the parties at the time of the contract. In the words of Alderson B in Ellis v Thompson:62

It seems to me the correct mode of ascertaining what reasonable time is in such a case as this, is by placing the Court … in the same situation as the contracting parties themselves were in at the time they made the contract: that is to say, … all (p. 11) those circumstances which were known to both parties at the time when the contract was made, and under which the contract itself took place.63

Or as McCardie J said in Pearl Mill Co Ltd v Ivy Tannery Ltd:64

Reasonable time is of course a matter which depends on the nature of the contract, its terms, the class of goods, the practice of the trade, and the general circumstances of the case.65

Though the specific reference in both cases here was to the seller’s duty of delivery, these remarks are applicable in the wider context. It has been said that what amounts to a reasonable time in this context has to be determined at the date of the contract, and must be judged by an objective test applicable to both parties.66 The court is not interested in what either party subjectively had in mind. Rather, the court has, as Lord Hoffmann said, to look at what the words would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.67 In the words of Staughton LJ:68

… in construing a contract the court should have regard to the surrounding circumstances prevailing at the time the contract was made, but only insofar as they relate … to facts which would have been in the minds of both parties and which each would know the other had in mind at the relevant time. Since the court [is] concerned with the common intention of the parties, evidence of one party’s intention [is] inadmissible, as [is] evidence of negotiations leading to the making of the contract.

Bearing this in mind, we may now consider some of the most important factors affecting the obligation to perform within a reasonable time.

(i)  How long would performance normally take?

1.18  One crucial factor is the normal time it would take for the obligation to be performed. In Nelson v Patrick69 the claimant sued the defendant for delay in taking back at the contract price various casks in which cement had been consigned. It was said by Wilde LCJ that the defendant had a reasonable time to perform the obligation, and that the court should bear in mind that:70

(p. 12)

A tradesman, who has to send his goods to all parts of the country, must necessarily require a considerable time to get back the casks from his customers.

On the other hand, where in Charnock v Liverpool Corporation71 a garage had taken eight weeks to do repairs to the plaintiff’s car, they were held to be liable in damages for the delay, on the grounds that the task should normally have taken only five weeks. In Jonathan Wren & Co Ltd v Microdec plc72 the contract was one for the supply of a specialist computer software package. It was held that the supplier was bound to supply the package within a reasonable time, and that in deciding what this should be the court should take into account the fact that the software was already in existence, and that it would not be too difficult to install it and have it up and running within a relatively short space of time. Where the obligation is an onerous one, the courts will, other things being equal, allow for some delay in performance, whereas they will be less inclined to do so where it is simple and straightforward.

(ii)  Was some delay expected?

1.19  Where a contract provides for performance at a fixed time it is no excuse for the promisor to say that some delay was contemplated at the time of the contract, but the courts will take this into account when the contract merely calls for performance within a reasonable time. This can be illustrated by Carlton SS Co Ltd v Castle Mail Packets Co Ltd,73 where a ship was chartered to go to a certain dock and load a cargo of rails ‘always afloat’. No time was set for the loading to be completed. The dock in question, as both parties knew, was affected by tides, so that the ship was unable to load without grounding except at the spring tide. Loading commenced, but had to be abandoned on the approach of the neap tides, and could not be completed until the following month. The charterer was held not to be liable in damages for the delay. The shipowner had chosen to insert the ‘always afloat’ term in the full knowledge that this might cause delay in loading at that particular dock, so could not complain about that delay, given that the charterer had a reasonable time in which to complete the loading.74

1.20  Another case illustrating this principle is US v 476 Acres of Land,75 where the defendant offered to sell a parcel of land to the US Government. The offer was accepted, and it was provided that the defendant could remain on the land rent free for one year from the date of the offer. Proceedings to acquire title were not instituted by the claimants until two years later, and the defendants argued that there had been an inordinate delay. But the court held that the claimants had not been too tardy in the circumstances, since the contract gave them a reasonable (p. 13) time for performance and the parties had clearly contemplated that there would be some lapse of time before title was acquired.

1.21  However, the mere fact that the parties foresaw that there might be some delay will not deprive the promisee of a remedy where the delay that has ensued is out of all proportion to that expected,76 still less when it has been so protracted as to frustrate the contract.77 What matters here is not so much the amount of the delay in itself as the ratio of the expected delay to that which actually takes place. So in Denison v Ladd78 a purchaser of land was held to be entitled to terminate the contract for a four-month delay in the furnishing of an abstract of title by the vendor, the evidence having showed that this could have been done in ten days at the most.

(iii)  Subject matter of the contract

1.22  The subject matter of the contract is obviously a very important consideration. For instance, where a seller is obliged to deliver the goods within a reasonable time, the period will be shorter for perishable goods than for other goods, and the same will be true in a rapidly fluctuating market. There are a number of cases which illustrate this. In Jaslow v Waterbury Co79 a contract for the sale of rope was cancelled by the buyer six months or so after it had been signed. Only a very small proportion of the goods ordered had been shipped, and the sellers were hampered by their inability to obtain the necessary shipping permit. It was held that rope being a commodity subject to rapidly fluctuating prices, it was unreasonable to expect the buyers to remain bound for such a protracted period. Similarly, in Nosotti v Auerbach80 four months was said to be a reasonable time for the vendor to vacate premises where the subject matter of the contract was a lease with only eighty years left to run. In United Dominions Trust (Commercial) v Eagle Aircraft Services Ltd81 an aeroplane was purchased by the plaintiff finance company and then let out on hire purchase to one of the defendant’s customers. A ‘recourse agreement’ provided that, in the event of default by the customer leading to termination, the plaintiffs should have the right to call on the defendants to repurchase the aeroplane. The customer having defaulted on payment of the hire purchase instalments, the agreement was terminated; five months later, the plaintiffs sought to activate the recourse agreement. It was held to be an implied term of the contract that the plaintiffs had to do this within a reasonable time after termination. Five months was far too long a delay in the case of a rapidly depreciating asset such as an aeroplane. In the words of Lord Denning MR, it would have been absurd to suppose that UDT could (p. 14) wait for twelve months or more, and let the aircraft go to rack and ruin, and still call on Eagle to repurchase.82

It would have been different if the subject matter of the contract had been an item that maintained its value; indeed, the whole point of the recourse agreement was to guard the finance company from being left with a depreciating asset on their hands.

(iv)  Relevance of pre-contractual negotiations

1.23  In general a contract has to be construed on the basis of the words used by the parties, and for this reason evidence of pre-contract negotiations is normally not allowed.83 However, in the present context it may be relevant to ask whether the promisor knows that the promisee needs to have a speedy performance. In Jonathan Wren & Co Ltd v Microdec plc,84 the claimants ordered a specialist computer software package from the defendant suppliers, and indicated to them that they wanted to have the package up and running by the end of July 1996. The suppliers made no promise as to the date of delivery, but did not indicate that they would be unable to meet the date suggested by the claimants. The claimants subsequently sought to cancel the contract on the ground that the software was unfit for purpose, but the question of the due time of delivery arose in the course of a trial of the preliminary issues. It was held that this was a case where section 14 of the Supply of Goods and Services Act 1982 applied, and that the obligation was to have the software installed within a reasonable time. However, in assessing what that time was the court should have regard to the fact that the suppliers knew that the claimants wanted the software installed quickly, and that there was nothing to prevent the suppliers doing so. In sum, while parol evidence is not admissible to convert a contract to perform in a reasonable time into a contract to perform in a fixed time, such evidence may be relevant in establishing what a reasonable time is in any given case.85

(v)  Relevance of trade custom

1.24  The custom of the trade may also be relevant in this context. In FC Bradley and Sons Ltd v Colonial & Continental Trading Ltd86 evidence was admitted to show a custom of the Covent Garden vegetable market that potatoes sold in the market should be available for ‘immediate’ delivery, it being held in the instant case that the time allowed for delivery should be (p. 15) seventy-two hours in all. Similarly, in Ross Brothers Ltd v Edward Shaw & Co87 the time allowed to the seller for delivery of a consignment of yarn was assessed in the light of a custom that on receiving orders he would be allowed sufficient time to contact his suppliers in Belgium. In Rochester Distilling Co v Geloso88 the claimants agreed to sell to the defendants some barrels of whisky and advertising materials. At the end of the month the defendants sought to cancel the contract on the ground that none of the advertising material had been delivered. But it was held that the claimants were not in default here; the custom of the trade was that advertising material would not be issued until the buyer had withdrawn the liquor from bond, which had not yet been done in the present case.

(vi)  Reasonable time and reasonable diligence

1.25  An obligation to perform at a fixed time is a strict one, it being no defence for the promisor to argue that all due diligence was used.89 But the obligation to perform within a reasonable time may imply an obligation to perform with reasonable diligence.90 In Hales v London and North Western Rly,91 the defendants agreed to deliver goods by luggage train to a destination near Sunderland. Since the place in question was not served by rail, the defendants, as was their normal practice, sent the goods to Newcastle, where they were then kept for several days waiting for the carrier to convey them onwards. The court upheld the jury’s finding that the defendants had failed to deliver the goods within a reasonable time. The goods could have been sent by rail from Newcastle to Sunderland, and then taken on by carrier from there, in which event they would have arrived several days earlier. The defendants’ failure to take reasonable steps to ensure the speedy delivery of the goods led to the conclusion that they had failed to do so within a reasonable time.

1.26  It is different where the promisor has done all that can be reasonably expected. Thus in Taylor v Clay,92 a case concerning a charterer’s obligation to load the ship within a reasonable time, the charterer was held not to be responsible for delays in loading caused by the carelessness of the crew, which had led to the ship being damaged and put out of action whilst repairs were effected. Here the charterer was not responsible for the crew, and the delays were beyond his control. (p. 16) A similar approach is seen in Rochester Distilling Co v Geloso,93 where the sellers agreed to deliver a quantity of advertising material to the buyer. It was held that the buyer was not entitled to reject the goods on the grounds of late delivery; no time for delivery having been specified, the sellers’ obligation was to do so within a reasonable time, and they had done all that could reasonably have been expected of them in the circumstances.

(vii)  The importance of knowledge

1.27  Circumstances to be taken into account in this context must be in the contemplation of the parties at the relevant time.94 A promisor guilty of delay cannot rely on obstacles to performance which are not within the contemplation of the promisee. In Charnock v Liverpool Corporation95 a garage was not allowed to plead shortage of staff and the pressure of other work as an excuse for delay in repairing a car; it was held that though they had a reasonable time in which to do the work, these factors were not within the knowledge of the customer. In the same way, the fact that the promisee has special reasons for wanting quick performance is irrelevant if these are not within the contemplation of the promisor. Thus in Foster v Heintzmann96 the seller of a piano ordered on 1 September was held not to be liable for failure to deliver by Christmas when he was unaware that it was intended as a Christmas present.

1.28  It is different where the promisee is aware of the relevant factors. In Carlton SS Co Ltd v Castle Mail Packets Co Ltd,97 the charterer was allowed to rely on the peculiarities of the harbour as an excuse for delay in loading, since these were well known to both parties. And in Panalpina v Densil Underwear98 it was held that a consignment of shirts had not been delivered in a reasonable time when they did not arrive until 18 December, the sellers being fully aware that they were needed for the Christmas market.99

(b)  Circumstances subsequent to the contract

1.29  As a general rule, events occurring after the contract was made cannot be taken into account in interpreting that contract.100 This means that subsequent events can have no relevance in deciding the content of the obligation to perform within a reasonable time. However, such factors may be of great relevance in deciding (p. 17) whether such an obligation has been performed, and this is a matter to which we shall return.101

C.  Performance Due on Demand

1.30  Sometimes the contract makes performance due on demand, as where a seller is bound to make delivery when requested by the buyer. Here the promisor need not perform unless and until the demand is made.102 However, two further questions arise. One is whether the promisor can withdraw from the agreement before any demand is made; this need not concern us further in the present context.103 The other is, assuming the promisor is bound from the outset, how long he or she must remain ready and willing to perform if no demand has been made. Here the rule seems to be that the promisor cannot be made to wait indefinitely in this kind of case,104 but that he or she cannot withdraw without giving the promisee one last opportunity to ask for performance. In Jones v Gibbons105 the seller agreed to sell and the buyer to accept a certain quantity of iron, delivery to be ‘as required’. After a long delay, the buyer called for delivery, but the seller refused to go on with the contract on the ground that the buyer’s request had not been made within a reasonable time. It was held that the seller was not entitled to refuse delivery in this peremptory way. What he should have done was to inform the buyer that the iron was ready for delivery, and give him a chance to accept it; if the buyer’s request for delivery had still not been forthcoming, the seller could then have terminated the contract.106

D.  Unilateral Obligations

1.31  A unilateral obligation arises where the promisor agrees to pay money or to perform some other act in return for some stipulated act or forbearance by the (p. 18) promisee: ‘I will do X if you do Y’. The obligation is called ‘unilateral’ in this case because only one of the parties is bound; the promisor must do X if the promisee does Y, but the promisee does not have to do Y; indeed, the promisee does not have to do anything at all. Sometimes an obligation of this sort can be freestanding, as in the classic example where the promisor agrees to pay £10 to anyone who can find his lost dog. In other cases it forms part of a larger contractual matrix, as where a landlord gives the tenant an option to renew the lease if certain conditions are met.107

1.32  Unilateral obligations of both these varieties can be made conditional on something being done by the promisee within a certain time. Thus in the first example, the owner of the dog may agree to pay the £10 to anyone who can find it before the end of the month. In the second example, the landlord may give the tenant an option to renew the lease provided that notice is given by a certain date. How is the proper time for performance to be determined in this context? In the strict sense, there is no such time, since the promisee has no obligation to perform at all, still less to do so by a certain date. However, all of this is of small consolation to the promisee who is debarred by delay from claiming the promised performance from the promisor. For this reason, it is convenient, albeit strictly improper, to discuss this situation in terms of late performance. However, the question is not whether delay in performance constitutes a breach of contract, for in the absence of any obligation to perform, there can be no breach. Rather, the issue is whether performance can be demanded even if the stipulated condition is not fulfilled on time. The dog is found after six weeks; the notice to renew is given a day late. Can the promisee still insist on being paid the £10, or on a new lease, as the case may be? Once again we must distinguish between a case where a time is specified and a case where the contract is silent as to time.

(1)  Where a time is specified

1.33  Where a unilateral obligation is made conditional on something being done by a certain day, the law traditionally adopts a strict approach to delay, the reason no doubt being the absence of any remedy in damages in such cases.108 Thus it is said that time is ‘of the essence’ in relation to unilateral obligations,109 so that delay by the promisee bars him or her from enforcing the relevant obligation on the part of the promisor. In Dibbins v Dibbins110 an option for a surviving partner to purchase a deceased partner’s share had to be exercised within three (p. 19) months of the death. The surviving partner being of unsound mind, his solicitors purported to exercise the option on his behalf, but were told that this could not be done without a court order. An order in lunacy having been obtained, a fresh notice was given, but by now the three months set for the exercise of the option had expired. It was held by Chitty J that the option could only be exercised in accordance with its terms, and that the second notice was accordingly equally ineffective. Again, in Hare v Nicoll111 a contract for the sale of shares gave the seller an option to repurchase by notice given before 1 May 1963, payment to be made before 1 June. The seller purported to exercise the option a day late, and then failed to tender the price until 7 June. It was held by the Court of Appeal that the option had not been validly exercised, one reason given being that such options being a species of privilege for the benefit of the party on whom they were conferred, it was for that party to comply strictly with the conditions stipulated for the exercise of the option.112

1.34  However, though this rule has been described as ‘settled and invariable’,113 it is subject to some qualifications. In particular, as in the case of a promissory obligation, the set time limit may not be intended to be absolute.114 One example of this is the practice in insurance contracts of providing what are known as ‘days of grace’, whereby the right of the assured person to renew the policy is not lost by failure to pay the premium on time.115 This can be done by making the future risk conditional on the payment of the premium on a certain day or within so many days thereafter, or the contract can provide that the policy will not lapse if the renewal premium is paid within a certain number of days after it falls due.116 As a general rule, if the contractual context indicates that strict adherence to a time limit is not essential in any given case a broader approach must be adopted.117

1.35  There are other cases where the courts have been forced to take a more relaxed approach to time limits in this context. The most obvious example is in relation to rent review clauses.118 In the typical situation, the lease contains a clause allowing the landlords to initiate an agreed process of rent review by service of a notice on the tenants on or before a specified day. The issue is whether the landlords’ (p. 20) failure to serve the notice in time debars them from having the rent reviewed. On the basis of the orthodox approach it does; the landlords not being bound to have the rent reviewed at all, the clause is in the nature of an option which has to be exercised strictly according to its terms.119 However, this led to an intolerable situation in the inflationary days of the 1970s and 1980s, and the courts were not slow to find ways of avoiding the strict logic of the principle. One was to say that the stipulated date for the service of the notice was not in the nature of an option, but was merely a part of the machinery for the review of the rent;120 but eventually the House of Lords got round the problem by invoking the ancient jurisdiction of equity to relieve against the strict construction of time stipulations,121 despite the orthodox view that this jurisdiction had no application in relation to options.122 This will be discussed more fully later,123 but what it means is that the strict approach to time stipulations in the present context is a general principle rather than an invariable rule.

1.36  Of course, the possibility of relief in cases of this sort does not mean that the set date is totally without significance, any more than it is in the context of promissory obligations.124 In particular, whilst before the set date the promisee can insist on performance as of right, after that he or she can only do so as a concession by the court.125 Moreover, the passing of the set date in this context can give rise to other remedies for the promisor, most notably the service of a notice making time of the essence.126 This again is a matter to which we shall return.127

(2)  Where the contract is silent as to time

1.37  If no time is specified for the exercise of a unilateral option, the courts will imply a requirement that this be done within a reasonable time. In United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd,128 an aeroplane was sold to a finance company and then let out on hire purchase to an airline company. The contract contained a ‘recourse agreement’ allowing the finance company to (p. 21) call upon the sellers to repurchase the aircraft in the event of premature termination of the hire purchase agreement with the airline company. The question was whether this option could be exercised some five months after the termination had occurred. It was held that this was far too late, one reason being that this was essentially a unilateral offer that could only be accepted in accordance with its exact terms. Though no express time limit was set, it had to be implied that the option to invoke the recourse agreement be exercised within a reasonable time after the termination of the hire purchase agreement. In the context of a rapidly depreciating asset like an aeroplane, five months was far too long to wait, and it was therefore not open to the finance company to call upon the sellers to repurchase the aeroplane at such a late stage. As in relation to promissory obligations, what is a reasonable time in any given case is a question of fact.129(p. 22)


1  In the present context we are mainly concerned with delay as a noun. However, it can also be used as an intransitive verb (to delay in the sense of dally or procrastinate) and as a transitive verb (to delay in the sense of to hinder or postpone): Mareva Navigation Co Ltd v Canaria Armadora SA (The Mareva AS) [1977] 1 Lloyd’s Rep 368 at 383 (Kerr J); Nippon Yusen Kaisha Ltd v Scindia Steam Navigation Co Ltd (The Jalagouri) [2000] 1 Lloyd’s Rep 515 at 516 (Rix J).

2  [1957] NZLR 337; Ganado, Max and Kindred, Hugh M, Marine Cargo Delays (1990), (‘Ganado and Kindred’), p 19.

3  Limitation Act 1950, s 4(7).

4  [1957] NZLR 337 at 345; Hay, David, (ed), Words and Phrases Legally Defined (4th edn, 2007) (‘Words and Phrases’), vol 1, p 619.

5  Words and Phrases, ibid; Westminster Corporation v Jarvis & Sons Ltd [1970] 1 WLR 637 at 645 (Viscount Dilhorne).

6  See below, para 1.11

7  Birds, John, Lynch, Ben, and Milnes, Simon (eds), MacGillivray on Insurance Law (13th edn, 2005) (‘MacGillivray’), para 7.042; Frank v Sun Life Assurance Co (1893) 20 Ont App Rep 564 (Court of Appeals for Ontario); Figre Ltd v Mander [1999] Lloyd’s Rep IR 193.

8  If time is of the essence, then even a day’s delay will release the company from further liability: Frank v Sun Life Assurance Co (above n 7) at 567 (Burton J); cf. United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd [1968] 1 WLR 74 (CA); below, para 1.35.

9  Below, paras 1.29–1.35.

10  Hydraulic Engineering Co Ltd v McHaffie & Goslett (1878) 4 QBD 670 (CA); Wigan Coal and Iron Co Ltd v Eckersley (1910) 103 LT 468 (HL); Words and Phrases (above n 4), vol 1 at 181–185.

11  Alexiadi v Robinson (1861) 2 F & F 679, 175 ER 1237; Re Todd & McFadden’s Contract [1908] 1 IR 213; Words and Phrases (above n 4), vol 1 at 1132–1133.

12  Eder, Sir Bernard and others (eds), Scrutton on Charterparties (23rd edn, 2015) (‘Scrutton’) at 7-045; Ganado and Kindred (above n 2), pp 35–38; President of India v Hariana Overseas Corp (The Takafa) [1990] 1 Lloyd’s Rep 536; Whistler International Ltd v Kawasaki Kisen Kaisha Ltd (The Hill Harmony) [2001] 2 AC 638 (HL); Tidebrook Maritime Corp v Vitol SA (The Front Commander) [2006] EWCA Civ 944, [2006] 2 Lloyd’s Rep 251.

13  Thus in a voyage charterparty the charterer may agree to load or unload the cargo at an average rate of so many tons a day: Burnett SS Co v Danube and Black Sea Shipping Agencies [1933] 2 KB 438 at 447 (Scrutton J); Kurt A Becher GmbH & Co KG v Roplak Enterprises SA (The World Navigator) [1991] 2 Lloyd’s Rep 23; President of India v Jebsens (UK) [1991] 1 Lloyd’s Rep 1 (HL). In the same way, a time charterparty may include a term warranting the speed and fuel consumption of the ship: Scrutton (above n 12) para 7-011; Coghlin, Terence and others (eds), Time Charters (7th edn, 2014) (‘Coghlin’), para 3.61; Dolphin Hellas Shipping SA v Itemslot Ltd (The Aegean Dolphin) [1992] 2 Lloyd’s Rep 178; Exmar NV v BP Shipping (The Gas Enterprise) [1993] 2 Lloyd’s Rep 352.

14  For a fuller discussion of this topic see below, chapter 2.

15  Williams, Cyprian, A Treatise on the Law of Vendor and Purchaser (1906), vol 2, para 934; Howe v Smith (1884) 27 Ch D 89 (CA) at 103 (Fry LJ); Jamshed Khodaram Irani v Bunjorji Dhunjibai (1915) 32 TLR 156 (PC) (Lord Haldane); In re Sandwell Park Colliery Co [1929] 1 Ch 277 at 282 (Maugham J); Williams v Greatrex [1957] 1 WLR 31 (CA) at 35 (Denning LJ); Babacomp v Rightside Properties Ltd [1975] 3 All ER 873 at 875 (Goff J).

16  It was also used to support the doctrine that a notice making time of the essence could not be served as soon as the promisor had failed to perform on time, but only after a further reasonable period of time had elapsed: Smith v Hamilton [1951] Ch 174. This case was overruled by the Court of Appeal in Behzadi v Shaftesbury Hotels Ltd [1992] Ch 1, it now being settled that such a notice can be served as soon as the promisor is in default: see below, para 8.20. See also Hewitt v Debus [2003] NSWSC 176, discussed below at para 13.75, n 348.

17  Emery, C T, ‘The date fixed for completion …’ [1978] Conveyancer 144.

18  Parkin v Thorold (1852) 16 Beav 59, 51 ER 698 at 701 (Lord Romilly MR); Tilley v Thomas (1867) LR 3 Ch App 61 at 69 (Rolt LJ); Samarenko v Dawn Hill House Ltd [2011] EWCA Civ 1445, [2013] Ch 36 at [35] (Lewison LJ).

19  But this was an over-simplification: below, para 2.42, n 110.

20  Below, para 2.41.

21  See further Thomas v Monaghan [1977] 1 NZLR 1 (New Zealand Ct of Appeal); Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 298–299; Winchcombe Carson Trustee Co Ltd v Ball-Rand Pty Ltd [1974] 1 NSWLR 477 (Supreme Ct of New South Wales); O’Sullivan v Moodie [1977] 1 NZLR 643 (Supreme Ct of NZ); Louinder v Leis (1982) 41 ALR 187 (High Ct of Australia).

22  [1981] AC 1050.

23  Lord Edmund-Davies, Lord Fraser, Lord Russell, and Lord Keith, Viscount Dilhorne dissenting.

24  [1981] AC 1050 at 1081. See also the remarks of Lord Fraser at 1090.

25  The case was subsequently cited with approval in various jurisdictions: see Morris v Robert Jones Investments Ltd [1994] 2 NZLR 275 (New Zealand Ct of Appeal); Park v Brothers [2001] NSWSC 88 (Supreme Ct of New South Wales); Tsang Cheung Kit & Ors v Hong Kong Housing Authority [1982] 1 HKC 268 (High Ct of Hong Kong); Man Sun Finance (International) Corp v Lee Ming Ching Stephen [1993] 1 HKC 113 (CA of Hong Kong); Lie Kie Siang v Han Ngum Juan Marcus [1992] 1 SLR 476 (High Ct of Singapore); Lim Hoe Heng v Poh Choon Kia [2013] 1 SLR 152 (Singapore Ct of Appeal). See however Paynter and Paynter v Holder and Holder [1986] Bda R 10 (Bermuda Ct of Appeal).

26  Below, chapters 2 and 11.

27  Mitsui OSK Lines Ltd v Garnac Grain Co Inc (The Myrtos) [1984] 2 Lloyd’s Rep 449.

28  Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (The Mihalis Angelos) [1971] 1 QB 174 (CA); Greenwich Marine Inc v Federal Commerce & Navigation Co Ltd (The Mavro Vetranic) [1985] 1 Lloyd’s Rep 581; Geogas SA v Trammo Gas Ltd (The Baleares) [1993] 1 Lloyd’s Rep 215 (CA). Compare Aries Powerplant Ltd v ECE Systems Ltd (1996) 45 Con LR 111 (delivery dates ‘estimated only and not guaranteed’).

29  Scrutton (above n 12), para 7-013; Cooke, Julian and others (eds), Voyage Charters (4th edn, 2014) (‘Cooke’), para 4.5.

30  Dennys, Nicholas and Clay, Robert (eds), Hudson’s Building and Engineering Contracts (13th edn, 2015) (‘Hudson’), para 6.054.

31  J F Finnegan Ltd v Sheffield City Council (1988) 43 BLR 130.

32  GLC v Cleveland Bridge and Engineering Ltd (1984) 34 BLR 72 (CA); J F Finnegan Ltd v Sheffield City Council (above n 31); Glenlion Construction Ltd v The Guinness Trust (1987) 39 BLR 94; Canwest Pacific Television Inc v 147250 Canada Ltd (1987) 5 ACWS (3d) 431 (British Columbia Ct of Appeal); Gregory Projects (Halifax) Ltd v Tenpin (Halifax) Ltd [2009] EWHC 2639 (Ch); Leander Construction Ltd v Mulalley & Co Ltd [2011] EWHC 3449 (TCC), [2012] BLR 152; Cleveland Bridge (UK) Ltd v Severfield-Rowan Structures Ltd [2012] EWHC 3652 (TCC). Compare Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239, [2005] Info TLR 294 (installation of computer system).

33  Hudson (above n 30), para 6.054. Such estimates may, however, still be relevant in assessing whether the promisor has performed within a reasonable time: see below paras 4.18–4.34.

34  Moel Tryvan Ship Co Ltd v Andrew Weir & Co [1910] 1 KB 844 (CA) at 857 (Kennedy LJ); Ganado and Kindred (above n 2), p 33.

35  Bridge, Michael (ed), Benjamin’s Sale of Goods (9th edn, 2014) (‘Benjamin’), para 8.037; Ellis v Thompson (1838) 3 M & W 445, 150 ER 1219; Nelson v Patrick (1846) 2 Car & Kir 641, 175 ER 269; Jones v Gibbons (1853) 8 Exch 920, 155 ER 1626; see now Sale of Goods Act 1979, s 29(3), below.

36  In the shape of the implied undertaking of ‘reasonable dispatch’: see Scrutton (above n 12), para 7.044; Sieveking v Maas (1856) 6 E & B 670, 119 ER 1013; Ford v Cotesworth (1870) LR 5 QB 544; Fowler v Knoop (1878) 4 QBD 299 (CA); Postlethwaite v Freeland (1880) LR 5 App Cas 599 (HL); Castlegate SS Co v Dempsey [1892] 1 QB 854 (CA); Hick v Raymond and Reid [1893] AC 22 (HL); Carlton SS Co v Castle Mail Packets Co [1898] AC 486 (HL); Lyle SS Co v Cardiff Corp [1900] 2 QB 638 (CA); Tradigrain SA v King Diamond Shipping SA (The Spiros C) [1999] 2 Lloyd’s Rep 91 (CA).

37  Furst, Stephen and Ramsey, The Hon Sir Vivian, Keating on Construction Contracts (10th edn, 2016) (‘Keating’), para 8.012; Thornhill v Neats (1860) 8 CB (NS) 831, 141 ER 1392; Roberts v Bury Commissioners (1870) LR 5 CP 310; Courtnay v Waterford Rly (1878) 4 LR Ir 11; Re Lockie and Craggs (1902) 86 LT 388; Munkenbeck & Marshall v Kensington Hotel Ltd (Counterclaim) (2002) 78 Con LR 171; Urban 1 (Blonk St) v Ayres [2013] EWCA Civ 816, [2014] 1 WLR 756.

38  Thompson, Mark (ed), Barnsley’s Conveyancing Law and Practice (4th edn, 1996) (‘Barnsley’), p 421; Sansom v Rhodes (1840) 6 Bing NC 261, 133 ER 103; Stavart v Eastwood (1843) 11 M & W 197, 152 ER 773; Simpson v Hughes (1896) 66 LJ Ch 143; Nosotti v Auerbach (1899) 15 TLR 140 (CA); Johnson v Humphrey [1946] 1 All ER 460; Mahase v Ramlal [2003] UKPC 12.

39  Taylor v Great Northern Rly (1866) LR 1 CP 385; Sims v Midland Rly [1913] 1 KB 103.

40  Kawasaki Kisen Kabushiki Kaisha v Belships Co Ltd (1939) 63 Ll LR 175; United Dominions Trust v Eagle Aircraft Services Ltd [1968] 1 WLR 74 (CA).

41  Braithwaite v Crawshay (1850) 16 LTOS 81; Charnock v Liverpool Corp [1968] 1 WLR 1498 (CA); see now Supply of Goods and Services Act 1982, s 14; below, para 1.15.

42  Wigginton v Dodd (1862) 2 F & F 844, 175 ER 1313.

43  Potter v Deboos (1815) 1 Stark 81, 171 ER 408; Hall v Wright (1858) 27 LJ QB 345.

44  Beale, Hugh G (ed), Chitty on Contracts (32nd edn, 2015) (‘Chitty’), para 21.12. The same applies when the contract uses some indefinite words such as ‘with all due dispatch’. But where the act to be done is one in which both parties to the contract are to concur, the implied engagement is not that the act shall be done within either a fixed or a reasonable time or within the time usually taken, but that each shall use reasonable diligence in performing his or her part: Ford v Cotesworth (1868) LR 4 QB 127, (1870) LR 5 QB 544; Wing Crawford Holdings Ltd v Lion Corporation Ltd [1989] 1 NZLR 563 (High Ct of NZ) at 569 (Chilwell J).

45  Sale of Goods Act 1979, ss 29(3) and 37.

46  Benjamin (above n 35), para 6.14.

47  However, this only applies where the contract is silent as to the time of performance; it is of no help where there is a fundamental disagreement between the parties on this issue: see Hescorp Italia SpA v Morrison Construction Ltd (2000) 75 Con LR 51 (QBD).

48  Supply of Goods and Services Act 1982, s 12(1). Here the rule is the same for consumer contracts: see Consumer Rights Act 2015, s 52.

49  In Port of Geelong Authority v The Ship ‘Bass Reefer’ (1992) 109 ALR 505 (Federal Ct of Australia) at 517–18 Foster J refers to ‘domestic employment, the armed forces, state bureaucracy, the provision of gas, water and electricity to buildings, transport in accordance with regular timetables, legal procedures, animal procreative activity, religious ritual and tennis’. See also the discussion in Dwyer v Hunter [1951] NZLR 177 (New Zealand Ct of Appeal) at 189–90 (Finlay J).

50  Supply of Goods and Services Act 1982, s 12(2).

51  Ibid, s 12(3).

52  Eagle Star Life Assurance Co Ltd v Griggs and Miles [1998] 1 Lloyd’s Rep 256 (CA).

53  Redland Aggregates Ltd v Shepherd Hill Civil Engineering Ltd [1999] BLR 252 (CA).

54  Jonathan Wren & Co Ltd v Microdec plc (1999) 65 Con LR 157.

55  Hudson (above n 30), para 6.008.

56  Dunn v Bradford MDC [2002] EWCA Civ 1137.

57  See further Words and Phrases (above n 4), vol 2, pp 947–950; Greenberg, Daniel and Greenberg, Yisroel (eds), Stroud’s Judicial Dictionary (9th edn, 2016).

58  The Secretary of State was by section 12(4) given power to exclude certain contracts from certain provisions of the Act, but no such order was made with regard to section 14.

59  For the common law see Nelson v Patrick (1846) 2 Car & Kir 641, 175 ER 269; Braithwaite v Crawshay (1850) 16 LTOS 81; Wigginton v Dodd (1862) 2 F & F 844, 175 ER 1313; Nosotti v Auerbach (1899) 15 TLR 140 (CA). For the statutory position see Sale of Goods Act 1979, s 59; Supply of Goods and Services Act 1982, s 14(2); Consumer Rights Act 2015, s 52(3).

60  Alexiadi v Robinson (1861) F & F 677, 175 ER 1237; Nosotti v Auerbach (1899) 15 TLR 140; see also Tindal v Brown (1786) 1 Term Rep 167, 99 ER 1033 at 2034 (Ashhurst J).

61  The issue is still relevant in deciding when there is an appeal from the decision of an arbitrator: below, paras 12.108–12.110.

62  (1838) 3 M & W 445, 150 ER 1219.

63  Ibid at 1224–5.

64  [1919] 1 KB 78.

65  Ibid at 83. The same principle is seen in many of the American cases: see for instance Dennis v Stoughton 55 Vt 371 (1883); Franklin Paint Co v Flaherty 139 Me 330, 29 A 2d 651 (1943); Zone Co v Service Transport Co 137 NJL 112, 57 A 2d 651 (1948); City and County of Honolulu v Kam 48 Haw 349, 402 P 2d 683 (1965).

66  Re Longlands Farm [1968] 3 All ER 552 at 556 (Cross J).

67  Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 at 912; Lewison, Sir Kim, The Interpretation of Contracts (6th edn, 2015) (‘Lewison’), chapter 1.

68  Scottish Power plc v Britoil (Exploration) Ltd [1998] CLY 848 (CA).

69  (1846) 2 Car & Kir 641, 175 ER 269.

70  Ibid; Morse v Bellows 7 NH 549, 28 Am Dec 372 (1835).

71  [1968] 1 WLR 1498 (CA).

72  (1999) 65 Con LR 157; Randolph v Frick 57 Mo App 401 (1894).

73  [1898] AC 486.

74  Ibid at 496 (Lord Macnaghten) and 498 (Lord Shand).

75  (USDC WD Pa) 86 F Supp 632 (1949).

76  As in Szanto v Pagel Tex Civ App, 47 SW 2d 632 (1932).

77  Ocean Tramp Tankers v V/O Sovfracht (The Eugenia) [1964] 2 QB 226 (CA).

78  54 Nev 186, 10 P 2d 637 (1932); Charnock v Liverpool Corp [1968] 1 WLR 1498 (CA).

79  CCA (2nd Circuit), 296 F 363 (1924).

80  (1899) 15 TLR 140; Mizell v Burnett 49 NC 249, 69 Am Dec 744 (1857).

81  [1968] 1 WLR 74 (CA).

82  Ibid at 81.

83  Lewison, above n 67 at 3.09.

84  (1999) 65 Con LR 157. For another aspect of this case see above, para 1.18.

85  Ellis v Thompson (1838) 3 M & W 445, 150 ER 1219. The issue of the parol evidence rule in this context has been discussed more extensively in some of the American cases: see Stange v Wilson 17 Mich 342 (1868); Boyd v Gunnison 14 W Va 1 (1878); Cameron Coal Co v Universal Metal Co 26 Okl 615, 110 P 720 (1910); Berman Stores Co v Hirsch 240 NY 209, 148 NE 213 (1925); Zone Co v Service Transport Co 137 NJL 112, 57 A 2d 562 (1948); Jay Clutter Custom Digging v English 181 Ind App 603, 393 NE 2d 230 (1979). For the parol evidence rule generally see Lewison, above n 67 at 3.11.

86  [1964] 2 Lloyd’s Rep 52 (CA).

87  [1917] 2 IR 367 (KBD (Ireland)).

88  92 Conn 43, 101 A 500 (1917); Mizell v Burnett 49 NC 249, 69 Am Dec 744 (1857).

89  Engell v Fitch (1869) LR 4 QB 659; In re Daniel [1917] 2 Ch 405 at 410 (Sargant J); Raineri v Miles [1981] AC 1050 (HL) at 1086–7 (Lord Edmund-Davies).

90  This is particularly the case when performance of the obligation in question requires the co-operation of both parties; here, it is said, ‘the implied engagement is not that the act shall be done within either a fixed or a reasonable time, or within the time usually taken, but that each shall use due diligence in performing his part’: Wing Crawford Holdings Ltd v Lion Corporation Ltd [1989] 1 NZLR 563 (High Ct of New Zealand) at 569 (Chilwell J). In some cases the contract imposes an express obligation on the promisor to use his or her best endeavours to perform within a reasonable time: see Hartwells of Oxford Ltd v British Motor Trade Association [1951] Ch 50 (CA); Monkland v Jack Barclay Ltd [1951] 2 KB 252 (CA).

91  (1863) 4 B & S 66, 122 ER 384.

92  (1846) 9 QB 713, 115 ER 1448.

93  92 Conn 43, 101 A 500 (1917); see also Read v Bonham (1821) 3 Brod & Bing 147, 129 ER 1238; Alexiadi v Robinson (1861) 2 F & F 677, 175 ER 1237.

94  The rule is similar to that for remoteness of damage: below, paras 9.15–9.74.

95  [1968] 1 WLR 1498 (CA).

96  [1923] 4 DLR 166 (Supreme Ct of Ontario).

97  [1898] AC 486 (HL); above, para 1.19.

98  [1981] 1 Lloyd’s Rep 187; Lukens Iron and Steel Co v Hartmann-Greiling Co 169 Wis 350, 172 NW 894 (1919).

99  For a case which illustrates both aspects of the rule see Dennis v Stoughton 55 Vt 371 (1883).

100  Union Assurance Society of Canton Ltd v George Wills & Co [1916] AC 281 (HL) at 288 (Lord Parmoor); James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 (HL) at 603 (Lord Reid); Sattar v Sattar [2009] EWHC 289 (Ch) at [36] (Sales J). For possible exceptions to this rule see Lewison, above at n 67, para 3.19.

101  Below, chapter 3.

102  Bowdell v Parsons (1808) 10 East 359, 103 ER 811; Great Northern Rly v Harrison (1852) 12 CB 576, 138 ER 1032.

103  The basic distinction is between a promisor who agrees to perform if demanded and one who agrees to perform when demanded. It is for the court to decide by construing the contract on which side of the line any given case falls; though the distinction is basically a simple one, the line is not always an easy one to draw. For an analysis of the relevant principles see Percival Ltd v London County Council Asylums and Mental Deficiency Committee (1918) 87 LJKB 677 at 678–679 (Atkin J). See further Great Northern Rly v Witham (1873) LR 9 CP 16; Leeson v North British Oil and Candle Co (1874) IR 8 CL 309; Moon v Mayor, Aldermen and Councillors of the Borough of Camberwell (1903) 89 LT 595; Wingold v William Looser & Co Ltd [1951] 1 DLR 429 (CA of Ontario); Miller v FA Sadd & Son Ltd [1981] 3 All ER 265 (DC).

104  Ross Bros Ltd v Edward Shaw & Co [1917] 2 IR 367 (KBD (Ireland)).

105  (1853) 8 Exch 920, 155 ER 1626.

106  In essence, what the promisor must do here is to serve a notice making time of the essence: see below, chapter 8.

107  Below, paras 11.33–11.36.

108  Where another remedy is available, the law can afford to be more lenient: below, paras 11.37–11.39.

109  Below, para 11.31.

110  [1896] 2 Ch 348. Compare Siemens Hearing Instruments Ltd v Friends Life Ltd [2014] EWCA Civ 382, [2014] 2 P & CR 5 (defective exercise of break clause).

111  [1966] 2 QB 130 (CA).

112  Ibid at 141 (Willmer LJ) and 148 (Winn LJ). In such cases compliance with the stipulated condition is ‘an external condition upon which the existence of the obligation depends’: see Zhilka v Turney [1959] SCR 578 (Supreme Ct of Canada) at 583 (Judson J); Hobart Investment Corp v Walker (1976) 68 DLR 3d 348; Carlson, Carlson, and Hettrick v Big Bud Tractor of Canada Ltd (1981) 7 Sask R 337 (CA of Saskatchewan).

113  Di Luca v Juraise (Springs) Ltd (2000) 79 P & CR 193 (CA) at 197 (Nourse LJ); Millers Wharf Partnership v Corinthian Column (1990) 61 P & CR 461.

114  Above, paras 1.09–1.10.

115  MacGillivray, above n 7 at paras 7-047–7-052.

116  Ibid.

117  United Scientific Holdings Ltd v Burnley BC [1978] AC 904 (HL); below, paras 2.44–2.45.

118  Below, paras 11.33–11.36.

119  Samuel Properties (Developments) Ltd v Hayek [1972] 1 WLR 1296 (CA); Richards and Son Ltd v Karenita Ltd (1971) 221 EG 25.

120  Kenilworth Industrial Sites Ltd v Little & Co [1975] 1 WLR 143 (CA).

121  United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 (HL).

122  Aberfoyle Plantations v Cheng [1960] AC 115 (HL) at 124–125 (Lord Jenkins). This case and others like it were distinguished by the House of Lords in the United Scientific Holdings case on the grounds that rent review provisions were not options in the true sense: see below, para 11.34.

123  Below, paras 11.34–11.36.

124  Above, paras 1.04–1.08.

125  No doubt, as in relation to equitable relief generally, this distinction becomes of less significance as the law evolves. However, the application of equitable doctrines in this area, as we shall see, is still relatively undeveloped; below, paras 11.52–11.68.

126  As in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 (HL).

127  Below, para 11.36. For notices making time of the essence in general, see chapter 8.

128  [1968] 1 WLR 74 (CA); above, para 1.20.

129  Above, para 1.16.