Carter, Courtney and Tolhurst, ‘An Assimilated Approach To Discharge For Breach Of Contract By Delay’

Abstract:
The conflict between common law and equity on the question of when time should be regarded as being ‘of the essence’ for the performance of a contract has often been debated, as has the impact of its resolution by the Judicature reforms in favour of equity’s more relaxed approach. Even so, it is tolerably clear that the two approaches have been substantially assimilated within general principles of discharge for breach. If, as a matter of construction, a time stipulation is a condition, then time is of the essence. Alternatively, time may have become of the essence by an effective notice to perform served by a promisee. If the contract has been validly discharged on either basis, specific performance will not be ordered in favour of the promisor.

JW Carter, Wayne Courtney and Gregory Tolhurst, An Assimilated Approach To Discharge For Breach Of Contract By Delay, Cambridge Law Journal Volume 76, Issue 1, March 2017, pp 63-86.

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