Essence of time in performance 1s47 provides that if notice is specified in the

Essence of time in performance 1s47 provides that if

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Essence of time in performance
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1. s.47 provides that if notice is specified in the contract, then the performance must be within a reasonable time. The explanation to s. 47 provides that what is “reasonable time” is a question of fact in each particular case. 2. When a contract specifies the day and place to perform but not the time, then under s.48 , the time to perform is during normal business hours. 3. ILLUSTRATION: A promises to deliver goods at B’ s warehouse on the 1st of January. On that day A brings the goods to B’ s warehouse, but after the usual hour for closing it, and they are not received. A has not performed his promise. 4. Despite the time (date) is stated in a contract, it does not automatically become essential in a contact. 5. In Tan Ah Kian v Haji Hasnan [1962] , the court held that time will be essence in 3 situations: (a) where the contract expressly states that time should be of essence; ( there must be a clause expressly states ‘time is essence in this contract’.) (b) Where the contract does not expressly state that time should be of essence but subsequently one party gives reasonable notice that time should be of essence; or
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( reimposition of time, i.e. originally time is not essence in the contract, however after a long/unreasonable delay of time, then the innocent party reimposes time, time then becomes essential. ) (c) Where the surrounding circumstances is such that time is essence: e.g. in building contracts, shipping contracts, contracts for transport of perishable goods. ( previous dealing cases; nature of the products ) 6. Waiver of right that time is of essence In Syarikat Eastern Plastics Industry v Syarikat Lam Seng Trading [1972] , the court implied that the granting of extension of time may amount a waiver as to essence of time. 7. However, in Siah Kwee Mow v Kulim Rubber Plantation [1979] , the court held that the granting of an extension of time does not amount to waiver as to essence of time in every case. The granting of an extension of time is merely substituting the extended time for the original time. 8. Relief s.56(1) provides that the effect of failure of performance by the promisor when time is essential is that the contract becomes voidable at the option of the promisee. If the elects to rescind the contact we must look at s.76. s.56(3) provides that if the promisee accepts the performance of the promise at any time other than that agreed, unless, at the time of the acceptance, he gives notice to the promisor of his intentions to do so.
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***this two section must be read together This was reiterated in Yeow Kim Pong Realty Ltd v Ng Kim Pong [1962] , where the court said that if performance is accepted outside the specified time, the innocent party must ensure that notice has been given to a defaulting party that he intends to sue for damages for any loss caused by late performance. Effect of failure when time is not essential When time is not essential, then s.47 applies in that the performance must be within a reasonable time which depends on the facts and circumstances in each case. If the contract is not performed within a reasonable time, then s.56(2) applies. s.56(2) provides that where there is a failure of
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  • Winter '17
  • Daniel
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