Sec. 1161. Time Not Of Essence In Equity
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This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Sec. 1161. Time Not Of Essence In Equity
In equity, on the other hand, the general rule may be said to be that time is not of the essence of the contract.1 "It must affirmatively appear that the parties regarded time or place as an essential element in their agreement or a court of equity will not so regard it."2 In order to make time of the essence of the contract in equity, there must be either an express provision, making time of the essence,3 or the nature of the subject-matter must be such as to require prompt performance at the time stipulated. The reason for this difference between law and equity is, that in law the promisee acquires, as a rule, no interest in the property under an executory contract until he either performs or tenders performance. In equity, on the other hand, the vendee acquires an interest in the property contracted for when the contract of sale is made, and the assignment of a particular day for the payment of the purchase-money is looked upon as merely formal, to secure payment in a reasonable time.4 A contract for the payment of money at a given time is ordinarily a contract of which time is not of the essence;5 and so is a contract to release a mortgage.6
16 Thacker, etc., Co. v. Mallory, 27 Wash. 670; 68 Pac. 199.
17 Halstead v. Jessup, 150 Ind. 85; 49 N. E. 821.
1 Brown v. Deposit Co., 128 U. S. 403; Hepburn v. Auld, 5 Cranch (U. S.) 262; Tate v. Development Co., 37 Fla. 439; 53 Am. St. Rep. 251; 20 So. 542; Chabot v. Park Co., 34 Fla. 258; 43 Am. St. Rep. 192; 15 So. 756; Reid v. Mix. 63 Kan. 745; 55 L. R. A. 706; 66 Pac. 1021; Kemper v. Walker (Ky.), 32 S. W. 1093; Sanford v. Weeks. 38 Kan. 319; 5 Am. St. Rep. 748; 16 Pac. 465;
Porter v. White, 128 N. C. 42; 38 S. E. 24; Jarvis v. Cowger, 41 W. Va. 268; 23 S. E. 522.
2 Secombe v. Steele, 20 How. (U. S.) 94, 104.
3 Brown v. Deposit Co., 128 U. S. 403; Tate v. Development Co., 37 Fla. 439; 53 Am. St. Rep. 251; 20 So. 542; Chabot v. Park Co., 34 Fla. 258; 43 Am. St. Rep. 192; 15 So. 756; Prink v. Thomas, 20 Or. 265; 12 L. R. A. 239; 25 Pac. 717.
4 Secombe v. Steele, 20 How. (U. S.) 94.
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