The tendency of modern law is to hold that the question whether or not time is of the essence of the contract, is to be regarded as a question of construction,1 and to assume that in the absence of an expression of intention to the contrary, either express or implied, time is not of the essence of a contract, either at law or in equity.2 Time is not of the essence of a contract to deliver bonds,3 and accordingly a contract for the sale of bonds can not be avoided by reason of the fact that a prior mortgage which prevented such bonds from being secured by a first mortgage, in accordance with the terms of the contract, had not been released at the time fixed for delivery.4 Time is not of the essence of a building contract,5 especially if there is a valid provision for liquidated damages for delay.6

The tendency of modern law to hold that time is not of the essence of a contract in the absence of clear intention of the parties that it should be of the essence of the contract, has been expressed in a group of statutes which provided that time is not of the essence of a contract, unless it is expressly so provided in the contract.7 "While language has occasionally been used which seems to apply the statute literally and to require that an express provision that time should be of the essence of the contract in order to make it such,8 and while it has been said that such a statute not only abolishes the common-law rule that time is to be regarded as of the essence of the contract, but that it also abolishes the equity rule that time is to be regarded as of the essence of the contract if such intention is necessarily implied from the contract and from the surrounding circumstances,9 it is generally held by the later authorities that it is not necessary to insert the language of the statute into the contract to produce this effect,10 but that time may be of the essence of the contract if it appears clearly from the terms of the contract that the parties so intended it.11

1 See Sec. 2103.

2 Alabama. Elliott v. Howison, 146 Ala. 568, 40 So. 1018.

Arkansas. Lenon v. Mutual Life Ins. Co., 80 Ark. 563, 8 L. R. A. (N.S.) 193, 10 Am. & Eng. Ann. Cas. 467, 98 S. W. 117.

Maryland. Nes v. Union Trust Co., 104 Md. 15, 64 Atl. 310.

North Dakota. Sunshine Cloak & Suit Co. v. Roquette, 30 N. D. 143, L. R. A. 1916E, 932. 152 N. W. 359 (obiter).

South Dakota. Phillis v. Gross, 32 S. D. 438, 143 N. W. 373.

West Virginia. Crosby v. Honaker. 57 W. Va. 512, 50 S. E. 610; Lewis v. West Virginia Pulp & Paper Co., 76 W. Va. 103. 84 S. E. 1063. Time is not of the essence of a contract' unless by its terms, or unless performance at a specified time is made a condition precedent. Lewis v. West Virginia Pulp & Paper Co., 76 W. Va. 103, 84 S. E. 1063.

If time is of the essence of the contract, the party not in default may waive a delay in performance. Reynor v. Mackrill, 181 Ia. 210, 1 A. L. R. 523, 164 N. W. 335.

3Nes v. Union Trust Co., 104 Md.

15, 64 Atl. 310.

4 Nes v. Union Trust Co., 104 Md.

15, 64 Atl. 310.

5Hunn v. Pennsylvania Institution, 221 Pa. St. 403, 18 L. R. A. (N.S.) 1248, 70 Atl. 812.

6Hunn v. Pennsylvania Institution, 221 Pa. St. 403, 18 L. R. A. (N.S.) 1248, 70 Atl. 812.

7 Sunshine Cloak & Suit Co. v. Roquette, 30 N. D. 143, L. R. A. 1916E. 932, 152 N. W. 359; Puls v. Casey, 18 Okla. 142, 92 Pac. 388; Snyder v.