Sec. 105. In A Court Of Law, Time Is Of The Essence

In a court of law time is deemed to be of the essence of a contract, and, unless time is waived, performance must be within the time stated, or, if no time is stated, then within a reasonable time.

In a contract, the time within which performance is to be made, may be either expressly stated or not. If no time is stated, the time is deemed to be a reasonable time. In a Court of law it is held that this stated time or reasonable time (whichever the case) is of the essence of the contract. This means merely that a person to a contract to exonerate himself of his obligation of performance thereunder, either in order to enable him to sue for his compensation, or defend against a charge of non-performance, must show that he performed or tendered performance within the allotted time; unless he can show that the other party waived performance within that time. It is not infrequent that a party to a contract does waive performance and accepts or shows himself as willing to accept a belated performance.

Example 68. A buys goods to be delivered to his place on Monday. The goods arrive on Tuesday. A need not accept.

Sec. 106. Time Of Performance In A Court Of Equity

In a court of equity time is not the essence unless expressly made so, or unless it necessarily results from the nature and circumstances of the contract.

In a court of equity a different rule prevails. This would seem to indicate that a person might be either a performer or a breaker of a contract according to the door, whether that of law or equity, by which he entered the courthouse - but, the distinction is in reality a fundamental one. The ordinary mercantile contract is one for which damages are regarded as an adequate remedy and for that remedy one must go into a court of law. To come into equity, the case must involve the doctrines or demand the remedies of equity, such as a foreclosure of a contract to buy real property because of non-payment of installments, foreclosure of mortgages, specific performance of contracts to sell real estate and the like, and in equitable cases, the rule is that time is not the essence, unless specifically made so, or unless there is some element in the contract that justice requires that it shall be held so. And, even where it is so provided, there are maxims of equity which may tend to offset it, to the effect that he who seeks equity must do equity, equity abhors forfeitures, and so on.