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Contracts • Excuse of Non-Performance
K#126
Legal Definition
If timely performance is essential, failure to do so can constitute a material breach. However, mere late performance is generally not a material breach if the performance is given within a reasonable amount of time.
Plain English Explanation
Even though people generally want others to keep their promises and perform when they say they will, and even though it's pretty lame to be late on delivery of performance, the law generally treats being late as not that big of a deal unless it was explicitly agreed upon in the contract that "time is of the essence," or when it is obvious that performance needed to be timely. In other words, the law will generally say, "Relax -- you're entitled to some sort of damages, but you can't throw out the entire agreement just because someone is running behind or late."
Hypothetical
Hypo 1: Bob wants Sam to cater his birthday party. Sam wants his house painted. Bob promises to paint Sam's house in exchange for Sam promising to cater his birthday. Bob says he will start painting Sam's house on Friday, four days before his birthday. It is important that Bob begin painting on Friday because Bob and Sam are aware that it will begin raining by Tuesday and the paint needs time to dry and cure. Bob doesn't show up on Saturday. Instead, Bob starts painting on Monday. Result: Because there was no "time is of the essence" clause in their agreement, Bob failing to start on time would usually be a minor breach. However, here, it was clear to the parties that timely performance was vital in order to make sure the paint cured and dried before the rain begins. Thus, this could be argued to be a material breach, which would excuse Sam from performance.
Visual Aids
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