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.
Where time is not of the essence of the contract and the defect is one merely of conveyance and not of title, the purchaser must give a reasonable time to remove the defect before repudiating the contract (a).
And time, though of the essence of the contract by original agreement, or made imperative by subsequent notice, may be enlarged or waived, by subsequent agreement, or by conduct of the parties amounting to waiver (6). Thus, if a purchaser proceed in the purchase after the expiration of the time fixed by the contract (c), or limited by his notice (d), it amounts to waiver (e); and the same rule holds good as regards a vendor (f). But the mere enlargement of time by the vendor does not amount to a waiver (g).
Time, though essential, may be enlarged or waived: by proceeding in purchase;
Where a purchaser made no demand for the possession of the purchased premises until a quarter before twelve at night on the day fixed for completion - part of the property consisting of cottages let to weekly tenants - this was held .to be a waiver of the condition as to time (h).
Or by neglect to require possession.
A.conditional written waiver by a purchaser of his previous notice of abandonment, will be construed strictly against the vendor (i).
A condition providing for delivery of the abstract at a certain time does not, in the absence of special circumstances (k), make that time of the essence of the contract: but where a purchaser has, by pressing the vendor to comply with the condition, or by requiring him to deliver an abstract within a reasonable time, made the time for delivery of the essence of the contract, he will by a subsequent acceptance of such abstract waive his right to rescind (I). The same principles would, no doubt, apply to the production of evidence, &c: and it is conceived that a waiver of time as respects matters (such as the delivery of the abstract, etc.,) which must precede completion, would, in general, amount to a waiver of the time (if any) fixed for completion.
Time for delivery of abstract, how waived.
(a) Batten v. Russell, (1888) 38 Ch. D. 334; 57 L. J. Ch. 425.
(b) Cutis v. Thodey, (1842) 13 Si. 206; 6 Jur. 1027; Nokes v. Lord Kilmorey, (1847) 1 De G. & S. 444; Dyas v. Rooney, (1890) 25 L. R. Ir. 342.
(c) Boyes v. Liddell, (1842) 6 Jur. 725; 1 Y. & C. C. C. 133.
(d) Webb v. Hughes, (1870) 10 Eq. 281; 39 L. J. Ch. 606; Flint v. Woodin, (1852) 9 Ha. 618; 16 Jur. 719.
(e) King v. Wilson, (1843) 6 Beav. 124; and see Ex p. Gardner, (1841) 4 Y. & C. 503; 10 L. J. N. S. Ex. Eq. 46.
(f) Pegg v. Wisden, (1852) 16 Beav. 239; 16 Jur. 1105.
(g) Parkin v. Thorold, (1851) 2 Si. N. S. 1; (1852) 16 Beav. 59; Sug. 14th ed. 270; Barclay v. Messenger, (1874) 43 L. J. Ch. 449; 30 L. T. 351.
(h) Palmer v. Temple, (1839) 9 A. & E. 508; 5 L. J. N. S. Q. B. 179; Carpenter v. Blandford, (1823) 8 B. & C. 575; 4 M. & R. 93.
(i) See Stewart v. Smith, (1824) 6 Ha. 222, n.
So, a vendor who receives and entertains the purchaser's requisitions delivered after the time specified, waives his right (unless expressly reserved) to insist on the conditions as to time (m); and, as a general rule, either party relying on time being essential as a defence to an action for specific performance, should take the point promptly (n).
A stipulation that time shall be of the essence of the contract, is waived by a purchaser who receives, and retains without objection, an abstract upon the face of which it appears that a title cannot be made within the time fixed for completion (o); or who, without an objection on that specific ground, proceeds with the purchase under a knowledge that there is no reasonable probability of the title being perfected in time for completion; as when it depends upon the result of a hostile action (p).
When the time for completion has expired, or when it has become certain that the title cannot be perfected in time, the purchaser should give notice in writing that unless the contract is completed by a day named (which must be reasonable according to the circumstances) the contract will as from that date be treated as rescinded. All subsequent communications (if any) should be made expressly without prejudice to the notice of rescission.
Time waived by not objecting to certain or highly probable delay in completion.
(k) Roberts v. Berry, (1853) 3 De G. M. & G. 284; 22 L. J. Ch. 398.
(l) See Seton v. Slade, 2 Wh. & T. L. C. 9th ed. 425, and notes.
(m) Cutts y. Thodey, (1842) 13 Si. 206; 6 Jur. 1027; Oakden v. Pike, (1865) 11 Jur. N. S. 666; 34 L. J. Ch. 620.
(n) Monro v. Taylor, (1852) 3 M. & G. 713; 21 L. J. Ch. 525.
(o) See Hipwell v. Knight, (1835) 1 Y. & C. 401, 419; 4 L. J. N. S. Ex. Eq. 52.
(p) Pincke v. Curteis, (1793) 4 Br. C. C. at p. 332; Wood v. Bernel, (1812) 19 Ves. 220; and see Williams v. Glenton, (1866) 1 Ch. 200; 14 W. R. 294.
In the case of contracts entered into before the 1st January, 1926, the term month means prima facie a lunar month (q), although in Acts of Parliament after 1850 the term month means a calendar month, unless a contrary intention is expressed (r). The L. P. Act, 1925, s. 61, provides that in all deeds, contracts, wills, orders and other instruments executed, made, or coming into operation after the commencement of that Act, the term month means calendar month unless the context otherwise requires.
"Month" means prima facie a calendar month in instruments executed after 1925.
In the computation of time the day from or after which the period is to commence is in general excluded from such period (s); for instance, the day of the date for delivery of requisitions of title is excluded from the number of days limited for their delivery (t); and the Law does not take notice of a fraction of a day (u).
Computation of time.