Tender is a proffer of performance made in due form by a party who is entitled to perform1 The elements of tender which are necessary to make a tender in due form are discussed in the following sections.2

For some purposes, including the necessity of the actual production of the thing which is tendered,3 and the effect of a refusal of tender upon the obligation of the party by whom tender is made,4 and also with reference to the effect of a tender after breach on the part of the party who makes such tender,5 a distinction must be made between the tender which is a proffer of performance of a covenant to pay a liquidated sum of money, and the tender which is a proffer of performance of any other covenant such as a covenant to convey land, to deliver personal property, to render services, and the like.

From another standpoint, a distinction must be made between tender of the various forms of covenants with reference to their relation to one another. The relation of covenants is considered in detail in connection with the subject of the breach of such covenants and of the effect of such breach.6 In this connection it may be pointed out that the great distinction lies between tender of performance of a concurrent covenant where the party who tenders performance has a right to demand simultaneous performance in return on the part of the party to whom performance is tendered;7 and the tender of performance of a subsequent covenant,8 or of a precedent covenant,9 or of an independent covenant,10 in which cases the party who tenders performance can not make a tender in due form if he demands performance in return on the part of the party to whom such performance is tendered.11

1 Kelley v. Clark, 23 Ida. 1, 129 Pac. 921; United States National Bank v. Shupak, 54 Mont. 542, 172 Pac 324; Tompkins v Batie, 11 Neb 147,38 Am. Rep. 361, 7 N. W. 747; Hart v. Kanawha Oil Co., 79 W. Va. 161, 90 S. E. 604.

"A tender imports not merely the readiness and the ability to pay or perform, but also the actual production of the thing to be paid or delivered over, and an offer of it to the person to whom the tender is to be made."

Banc v. Atlantic Coast Line R. Co., 171 N. Car. 328, 88 S. E. 477.

2 See Sec. 2854 et acq.

See, The Requisites of a Valid Tender, by J. IT. Lind, 17 American Law Register (N.S ), 745.

3 See {2863. 4 See Sec. 2874.

5 See Sec. 2855 et seq.

6 See ch. LXXXIV.

7 See Sec. 2961 et seq. 8 See Sec. 2951 et seq.

9 See Sec. 2951 et seq. 10 See Sec. 2971 et seq.

As a result of the fundamental differences between these various classes of covenants, tender is sometimes used in the restricted sense of a proffer of performance of a covenant for the payment of money only,12 and sometimes in an even more restricted sense as a proffer of performance of a covenant to pay money only, other than a concurrent covenant.

Since tender is a proffer of performance, it must be a proffer of the performance which is called for by the terms of the contract and not the proffer of something else in lieu of such performance.13 Since tender is a proffer of performance, the thing which is ten-dered must be tendered as performance of a valid and subsisting obligation, and not as something which is offered gratuitously by the party who makes the tender without any recognition on his part of a valid and subsisting obligation to perform.14

If tender in due form is accepted, the obligation is performed, unless the party who has proffered tender refuses performance, in which case there is a breach on his part. Each of these cases is discussed, therefore, under the headings of performance15 and of breach,16 respectively. For this reason the term "tender" is frequently used only where the tender which is proffered is refused by the party to whom such proffer is made;17 and in other eases the transaction is referred to as performance or breach, as the case may be.

11 See Sec. 2868 and 2071 et seq.

12 "The debtor may be able and ready to pay, and the creditor may know this, but there is no tender unless the money is produced and offered to the creditor, or unless there is a waiver of the tender; and the debtor must seek the creditor and not the creditor the debtor." Bane v. Atlantic Coast .Line R. Co., 171 N. Car. 328, 88 S. E. 477.

"Tender is the unconditional offer of a debtor to the creditor of the amount of his debt. This means the real amount of the debt as fixed by the law, and the purpose of the law of tender is to enable the debtor to relieve himself of interests and costs and to relieve his property of encumbrance by offering his creditor all that he ha* any right to claim This does not moan that the debtor must offer an amount beyond reasonable dispute, but it means the amount due - actually due." Kelley v Clark, 23 Ida 1, 1*29 Pac. 921.

13 "The law makes a clear distinc-tion between a tender, the actual proffer of money or other property into court, and a mere proposal, or proposition to do the thing." Hart v. Kanawha Oil Co; 79 W. Va. 161, 90 S. E. 604.

14 Sansone v. Crocker, - Ia. - , 170 N. W. 796.

15 See ch LXXX.

16 See ch. LXXXIV.

17 Barker v. Brink, 5 Ia. 481; Cape Fear Lumber Co. v. Small, 84 S. Car. 434, 66 S. E. 880.