Time is of the essence

Boilerplate Anatomy™ →Go uptown A “typical” time is of the essence clause: Time shall be deemed to be of the essence of the Agreement. view template Resources: commercial imperative | Verbiage | Look, I tried | The ultimate client Index: Click ᐅ to expand: Boilerplate Representations and warranties Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Time is of the essence is a magic incantation that one puts into a contract to designate that, whatever else might go down, a party’s failure to comply with obligations within the stated time-frame is a fundamental breach justifying termination of contract, a plague upon your houses, apocalyptic horsemen on the ridge and so on.

Now at common law, time is — was — always of the essence. When any time is specified for the completion of an action, one party has an action if the other doesn’t performed by that time.

But as always, the dear old courts of chancery have to have their say. In equity, time is only fundamental to a contract if:

• it is expressed to be “of the essence”; or
• Otherwise, the circumstances indicate the time limit must be complied with exactly;
• Where neither of the above applies, but one party has been unduly delaysome, the other can give notice requiring performance within a reasonable time, therefore making time of the essence.

Thanks to the Law of Property Act 1925, Section 41, the rules at equity now apply in contract as well. Eheu.

Grace periods and “the essence”

We have heard it argued that time being of the essence might override otherwise carefully negotiated grace periods. When challenged, the counsel in question was tongue-tied for a moment, before mumbling something about litigation over the Lehman administration but could not, ultimately supply any grounds, let alone actual authority, for this proposition. Time being of the essence means, more than anywhere, that one should assume the parties meant what precisely what they said. Here, one should pay exact attention to the time limits prescribed by a contract — including the grace periods so tediously injected into it — not ignore them.

See also

• Law of Property Act 1925
• Fundamental breach (aka repudiatory breach) or contract