- Created by: Majid
- Created on: 12-05-13 19:47
5. Stipulations as to time of Performance: In equity 'time is not of the essence', however it will be under 3 occasions:
1. Where an expressed time is given; 2. Surrounding circumstances make time important (perishable goods); 3. Miss deadline and another is given. CASE: "Union Eagle v Golden Achievement". In this case a seller agreed to sell a flat in Hong Kong and stated that 'time was of the essence' and that the deposit would be forfeited if the buyer failed to complete it on time. It had to be completed at 5pm, but the buyer's solicitor arrived 10 minutes after. HELD: Equity has no right to intervene in order to save the buyer from breach of contract and was ... refused.
AO2: This is a fair exception given that an express stipulation existed before the contract was made as the party was already aware of this.
6. Tender of Performance: If a party offers to perform but is unresaonably refused, the party 'performing' can sue for damages and ... the contract is discharged.
CASE: "Startup v Macdonald". In this case a delivery was to be made at 'the end of March'. The seller delivered at 8:30pm on 31st March, but buyer refused to accept the delivery. HELD: The buyer couldn't repudiate and ... seller was able to claim for damages as he tendered his services but was refused.
AO2: This is seen as a logical and fair decision in that despite the seller not being able to perform he can assume the contract is discharged ... this provides justice for the seller as he attempted performance.