This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
In cases where time is not of the essence of the contract, gross or wilful neglect (f) by either party, will entitle the other party to avoid the contract (g).
Where time is of the essence of the contract - as in the case of an option - and the purchase-money is required to be paid before a certain date, the purchaser should not be content with merely asking the vendor to take the necessary steps towards completing the purchase, but should diligently press him to do so (h). Although delay and acquiescence are a defence to a suit for specific performance, they are inapplicable where the contract has been acted upon; as where, under a contract for a lease, possession is taken and for a series of years rent paid (i).
Effect of protest without active pressure; or partial completion.
Where time is not of the essence of the contract, and the delay originates in the state of the title, it is sufficient, upon a bill for specific performance being filed by the vendor, if a good title is shown at the date of the decree (k), or of the investigation at chambers, if the title is referred to chambers.
When title must be shown.
(e) 1913, A. C. 319.
(f) Lennon v. Napper, (1805) 2 Sch. & L. 682; Roberta v. Berry, (1S53) 3 D. M. & G. at p. 289; 22 L. J. Ch. 398; Tilley v. Thomas, (1867) 3 Ch. 61; 17 L. T. 422.
(g) Lloyd v. Collett, (1793) 4 Br. C. C. 469, cited 5 Ves. 737; Warde v. Jeffery, (1817) 4 Pr. 294; Venn v. Cattell, (1873) 27 L. T. 469. (h) Brooke v. Garrod, (1857) 3 K. & J. 606, 616; 27 L. J. Ch. 226. (i) Sharp v. Milligan, (1856) 22 Beav. 606.
Chap X. Sect. 1.
Where no time is fixed for completion, it is an implied term of the contract that it shall be within a reasonable time,(l), and the fact of no time being fixed will not prevent the contract being enforced (m). By the statutory conditions of sale, prescribed under s. 46 of the L. P. Act, 1925, and made applicable in the case of contracts by correspondence, and capable of being incorporated into other contracts, the date for completion, unless otherwise agreed, is to be the first day after the expiration of seven weeks from the time when the contract is made, or if that day is a Sunday, Christmas Day, Good Friday, or a Bank holiday, the next following working day. Though time may not originally have been of the essence of the contract, either party may, if there has been default or unreasonable delay by the other party, by proper notice bind the other to complete within a reasonable specified period; and the question whether the period is reasonable must be judged of as at the time when the notice is given (n).
Time may be limited by notice, allowing a reasonable period.
The notice should, at least as a matter of precaution, be in writing: what time can be considered a reasonable time for completion depends upon the circumstances of the particular case. In order to determine whether a vendor has become disentitled to specific performance, "his conduct both before and after the day fixed for completion must be considered. The purchaser's conduct is also relevant, for a delay by the vendor without remonstrance from the purchaser is far from having the same effect as a similar delay in spite of such remonstrance" (o). In the cases mentioned in note (p) the notice was considered insufficient; and in those mentioned in note (q) it was deemed sufficient.
(k) See Southcomb v. Bp. of Exeter, (1847) 6 Ha. 213; 16 L. J. Ch. 378, and formerly at law; Thomson v. Miles, (1794) 1 Esp. 184.
(l) Simpson v. Hughes, (1897) 66 L. J. Ch. 334; 76 L. T. 237; Nosotti v. Auerbach, (1898) 79 L. T. 413.
(m) Gray V. Smith, (1889) 43 Oh. D. 208, 214, 215; 59 L. J. Ch. 145.
(n) Crawford v. Toogood, (1879) 13 Ch. D. 153; 49 L. J. Ch. 108; Green v. Sevin, (1879) 13 Ch. D. 589; Stickney v. Keeble, 1915, A. C. 386; Re Bayley and Shoesmith, (1918) 87 L. J. Ch. 626.
(o) Per Lord Parker in Stickney v. Keeble, 1915, A. C. p. 418.
If a purchaser repudiates a contract by reason of the vendor's want of title, he must do so as soon as he discovers that the vendor cannot make a good title (r). And a party to a contract who desires to avail himself of an act of repudiation by the other party must evidence his election to do so with reasonable dispatch (s).
It is not essential to the binding effect of a vendor's notice of rescission that he should, at the expiration of it, return or tender the deposit (t).
The deposit need not be returned at expiration of notice in order to make notice binding.
A purchaser cannot, in general, determine the contract without previous notice (u); though notice even of immediate determination would, it is conceived, be material, in that it would more strongly impose upon the vendor the necessity of using expedition in proceeding to enforce the contract (x); and where the vendor has positively refused to comply with the purchaser's valid requisition, the latter may, after allowing the vendor a short time for considering whether he will persist in his refusal, or perhaps, even without giving any further notice, rescind the contract (y); and the same principles would, it is conceived, apply to notices by a vendor. If the vendor himself fails to fulfil the conditions as to time, he cannot hold the purchaser to them (z).
Purchaser or vendor cannot rescind without notice.
(p) Pegg v. Wisden, (1852) 16 B. 239; King v. Wilson, (1843) 6 B. 124; Wells v. Maxwell, (1863) 32 B. 408; Mcmurray v. Spicer, (1868) 5 Eq. 527; Parkin v. Thorold, (1852) 16 B. 59; Nott v. Riccard, (1856) 22 B. 307; Crawford v. Toogood, (1879) 13 Ch. D. 153; Green v. Sevin, (1879) 13 Ch. D. 589.
(q) Southcomb v. Bp. of Exeter, (1847) 6 Ha. 213; 16 L. J. Ch. 378; Benson v. Lamb, (1846) 9 B. 502; 15 L. J. Ch. 218; Mcbryde v. Weekes, (1856) 22 B. 533; Smith v. Batsford, (1897) 76 L. T. 179; Stickney v. Keeble, 1915, A. C. 386, 418.
(r) Halkett v. Earl Dudley, 1907, 1 Ch. 590.
(s) Berners v. Fleming, 1925, Ch. 264.
(t) Sug. 14th ed. 269.
(u) Taylor v. Brown, (1839) 2 Beav. 180; 9 L. J. N. S. Ch. 14; Wood v. Machu, (1846) 5 Ha. 158; 16 L. J. Ch. 21.
(x) See Guest v. Homfray, (1801) 5 Ves. 818.
(y) Nott v. Riccard, (1856) 22 Beav. 307; 25 L. J. Ch. 618; King v. Chamberlayn, (1887) W. N. 158.
(z) Southby v. Hutt, (1837) 2 M. & Cr. 207; 1 Jur. 100; Upperton v. Nickolson, (1871) 6 Ch. 436; 40 L. J. Ch. 401.