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.
The Roman law idea of mora, which was unjustified and inexcusable delay in performance of an obligation, has been carried over into the Louisiana Civil Code;1 and it is necessary to put the promisor in default by a demand for performance, in order to recover damages.2 It is not necessary to put the promisor in default if the promisee wishes to treat the default as a discharge of the contract.3 It is not necessary to put the promisor in default if he repudiates the contract,4 as where he denies the fact that he has entered into such contract,5 or declares that he will not perform.6
11 Lima Locomotive & Machine Co. v. National Steel Castings Co., 155 Fed. 77, 11 L. R. A. (N.S.) 713; Ray-burn v. Comstock, 80 Mich. 448, 45 N. W. 378.
12 Bradley v. Nevada-California-Ore-gon Ry., - Nev. -, 178 Pac. 006.
13 Timmerman v. Stanley, 123 Ga. 850, 1 L. R. A. (N.S.) 379, 51 S. E. 760; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325; Chesley v. Soo Lignite Coal Co., 19 N. D. 18, 121 N. W. 73.
14 Croup v. Humboldt Quartz & Placer Mining Co., 87 Wash. 248, L. R-A. 1918A, 537, 151 Pac. 493.
15 Hart-Parr Co. v. Duncan, - okla. -, 4 A. L. R. 1434, 181 Pac. 288.
16 Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L. R. 1434, 181 Pac. 288.
1 Civil Code, Art. 1011.
2 Murray v. Barnhart, 117 La. 1023, 42 So. 489; Jennings-Heywood Oil Syndicate v. Houssiere-Latreille Oil Co., 119 La. 793, 44 So. 481.
This idea has been adopted in some common-law jurisdictions, and it has been held that in case of mere non-performance, as distinguished from the various types of renunciation by word or act, the party who is not in default must put the adversary party who is already in default into further default by demanding that he perform.7
If one of the parties has led the other to believe that strict performance will not be demanded, notice that performance will be insisted upon in accordance with the terms of the original contract must be given for a reasonable time before the adversary party can be regarded as being in default,8 even in jurisdictions in which such conduct is not regarded as a final waiver of the right to performance of the contract, according to its original terms.9 In some jurisdictions it seems to be held that demand for performance is necessary if no time for performance is fixed by the contract,10 apparently on the theory that such contract is not to be performed in a reasonable time, but is to be performed on demand.11 Since it is generally held that a contract which does not fix a specific time for performance is to be construed as requiring performance in a reasonable time,12 it would seem that notice was not necessary,13 except in case of concurrent covenants. If the covenants are concurrent, and the contract does not make time of the essence and does not contain a forfeiture clause, either party who wishes to put the other in default must give notice that he is ready and willing to perform and must demand performance of the adversary party before such adversary party can be put in default.14
3 Murray v. Barnhart, 117 La. 1023, 42 So. 489; Jennings-Hey wood Oil Syndicate v. Houssiere-Latreille Oil Co., 119 La. 793, 44 So. 481.
4 Southern Sawmill Co. v. Ducote, 120 La. 1052, 46 So. 20; Johnson v. Levy, 122 La. 118, 47 So. 422.
5 Southern Sawmill Co. v. Ducote, 120 La. 1052, 46 So. 20; Johnson v. Levy, 122 La. 118, 47 So. 422.
6 Southern Sawmill Co. v. Ducote, 120 La. 1052, 46 So. 20; Johnson v. Levy, 122 La. 118, 47 So. 422.
7 Elliott v. Howison, 146 Ala. 568, 40 So. 1018; Ackley v. Hunter-Benn & Co.'s Company, 166 Ala. 295, 51 So. 964.
8 Panoutsos v. Raymond Hadley Corporation , 2 K. B. 473 [affirming (1917), 1 K B. 767]; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 21 L. R. A. (N.S.) 864, 88 N. E. 24; Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054.
9 See Sec. 3044.
10 Ryan v. Litchfield, 162 la. 609, 144 N. W. 313; Soderlund v. Helman, 215 Mass. 542, 102 N. E. 899; Delaware Trust Co. v. Calm, 195 N. Y. 231, 88 N. E. 53; Gammon v. Bunnell, 22 Utah 421, 64 Pac. 958.
11 For notice as an express condition, see Sec. 2609 et seq.
12 See Sec. 2098.
13 McCall v. Atchley, 256 Mo. 39, 164 N. W. 593.