At Law, the time fixed for completion was formerly of the essence of the contract (a); and the purchaser might recover his deposit, unless the vendor could deduce and verify a marketable title and give a conveyance at the time agreed on (b). But by s. 41 of the L. P. Act, 1925, re-enacting s. 25 (7) of the Jud. Act, 1873, it is provided that surrounding circumstances, which would make it inequitable to interfere with and modify the legal right. This is all that is meant when it is said that in Equity time is not of the essence of the contract (d). The "maxim never had any application to cases in which the stipulation as to time could not be disregarded without injustice to the parties; when, for example, the parties, for reasons best known to themselves, had stipulated that the time fixed should be essential, or where there was something in the nature of the property or the surrounding circumstances which would render it inequitable to treat it as a non-essential term of the contract" (e).

Section 1

Timeformerly essential at law.

"Stipulations in a contract, as to time or otherwise, which according to rules of equity are not deemed to be or to have become of the essence of the contract, are also construed and have effect at law in accordance with the same rules."

L. P. Act, 1925, s. 41.

In Equity it has always been the rule that though unreasonable delay will of itself conclude either party, the Court will relieve against or enforce specific performance, notwithstanding a failure to keep the dates assigned by the contract either for completion or for any of the steps towards completion, if it can do justice between the parties (c); and if there is nothing in the express stipulations of the agreement, or the nature of the property, or the

Time, how far essential in Equity.

(a) Berry v. Young, (1788) 2 Esp. 640, n.; Stowell v. Robinson, (1837) 3 Bing. N. C. 928; 6 L. J. C. P. 326; Marshall v. Powell, (1846) 9 Q. B. 779, 791; 16 L. J. Q. B. 5; Hanslip v. Padwick, (1850) 5 Ex. 623; 19 L. J. Ex. 372.

(b) Sug. 14th ed. 259. See also Porcher v. Gardner, (1849) 8 C. B. 461; 19 L. J. C. P. 63; Maryon v. Carter, (1830) 4 C. & P. 295; Carter v. Scargill, (1875) L. R. 10 Q. B. 564; 32 L. T. 694.

(c) See Lord Cairns, C., in Tilley v. Thomas, (1867) 3 Ch. at p. 67: 17 L. T. 422.

On an agreement by a tenant at will of a public house for the sale of the possession, trade and goodwill at a fixed sum, and of the stock and furniture at a valuation, possession to be taken and the money paid on a given day, the delay of a single day on the part of the purchaser in having the valuation completed and in taking possession and paying the purchase-money, was held to relieve the vendor from the contract: inasmuch as he incurred fresh liabilities by retaining the premises, and the stock in the meantime varied (/).

So, upon the sale of a public house as a going concern, time is of the essence of the contract (g). In the absence of stipulation to procure a transfer of the licence to the purchaser, it is sufficient if at the date fixed for completion the vendor has a valid and effectual licence existing which he can indorse in the usual way and upon which the purchaser can apply at once for interim protection and without undue delay at the next Transfer Sessions; and the vendor, if asked, should join with the purchaser in his application (h).

As where vendor incurs liability by keeping property, e.g., public house;

(d) Per Turner, L. J., in Roberts v. Berry, (1853) 3 D. M. & G. 284; 22 L. J. Ch. 398; Stickney v. Keeble, 1915, A. C. p. 402.

(e) Per Lord Parker of Waddington in Stickney v. Keeble, 1915, A. C. p. 416.

(f) Cotlake v. Till, (1826) 1 Rus. 376.

(g) Seaton v. Mapp, (1846) 2 Coll. 556; Day v. Luhke, (1868) 5 Eq. 336; 37 L. J. Ch. 330; Claydon v. Green, (1868) L. R. 3 C. P. 511; 37 L. J. C. P. 326; Cowles v. Gale, (1871) 7 Ch. 12; 41 L. J. Ch. 14; Warren v. Moore, (1897) 14 T. L. R. 139; (1898) ib. 497; and see Farnham Brewery Co. v. Hunt, (1893) 68 L. T. 440.

The fluctuating value of the property may alone show that time was to be of the essence of the contract: as upon an agreement for the sale of foreign stock (i), or of a mining lease (k), or of a reversion, which may become an estate in possession during the delay, and the sale of which generally evidences immediate want of money (I), or of a life annuity or life estate, which may determine by the death of the cestui que vie (m).

Or property is of fluctuating value; or of a determinable character;

So, where the property is of a wasting character, as, e.g., a leasehold for a short unexpired term (n).

Or of a wasting character;

So, where the purchaser, to the knowledge of the vendor, requires the property for present occupation or for some other immediate purpose (o).

Or is evidently-required at, once;

So, where the vendors, (being beneficially interested,) are a fluctuating body, where delay may give the purchase-money to persons other than those who signed the contract (p).

Or where the vendors are a fluctuating body.

The tendency has been to hold persons concerned in contracts relating to land, bound, as in other contracts, to regard time as material, especially where the property is connected with trade (q). The question is, however, in all cases one of intention, depending on the nature of the property and the true construction of the contract (r).

Modern decisions tend to render time material.

(h) Tadcaster Tower Brewery Co. v. Wilson, 1897, 1 Ch. 705; 66 L. J. Ch. 402; see the Licensing (Consolidation) Act, 1910, ss. 22 and 23.

(i) Doloret v. Rothschild, (1824) 1 S. & S. 590; 2 L. J. (O. S.) Ch. 125.

(k) Macbryde v. Weekes, (1856) 22 Beav. 533; 2 Jur. N. S. 918.

(l) See Newman v. Rogers, (1793) 4 Br. C. C. 391; Spurrier v. Hancock, (1799) 4 Ves. 667, 672; Hipwell v. Knight, (1835) 1 Y. & C. 401, 416; 4 L. J. N. S. Ex. Eq. 52; Wyvill v. Bp. of Exeter, (1815) 1 Pr. 292, 298.