I don't believe that the amount of damage to the promissee is the issue. The issue is the discharge from performance. The failure of an express condition results in discharge of the promisee regardless of whether there is an injury. Of course if late performance causes injury, proven damages would be recoverable. As a matter of equity, the court might be inclined to be generous in awarding quantum meriut to the promisor. But I might be wrong.

Keith A. Maxwell, J.D.
Nat S. and Marian W. Rogers Professor (Emeritus)
Professor Emeritus Legal Studies and Ethics in Business
University of Puget Sound
Tacoma, WA

Adjunct Professor of Business Law
Dixie State College
Saint George, UT



-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk on behalf of Daniel Warner
Sent: Thu 7/16/2009 10:34 AM
To: [log in to unmask]
Subject: "Time is of the essence" clause as boilerplate
 
Hi Colleagues,

Assume the offeror cranks out a contract with a "time is of the essence" clause in boilerplate.  The offeree accepts the contract, but performance is somewhat tardy.  The offeror actually suffers no material damage as the result of tardy performance, but points to the "time is of the essence" clause and insists it makes any late performance a material breach, entitling the offeror to significant damages.

What result would obtain, do you think?

Thanks.

Dan Warner

Daniel M. Warner
Professor, Dept. of Accounting
(Business Legal Studies)
MS 9071, WWU
516 High St.
Bellingham, WA 98225
360 650-3390