A breach of the contract is committed when one of the parties fails to perform some obligation imposed on him by the agreement at the time when it ought to be performed (c). The obligations undertaken on a sale of land have been already enumerated (d); they consist mainly in the vendor's duty to show a good title and convey the land sold and the purchaser's to pay the price. With respect to the time for performance of these obligations, we have seen that the general rule is that any act necessary to be done by either party in order to carry out the contract must be done within a reasonable time (e); and that, although a day be fixed for completion of the contract, time is not in general of the essence of the contract either in equity or, since the Judicature Acts, at law(f). It follows that, except where time is of the essence of the stipulation (g), a breach of contract is only committed in the case of unreasonable delay in the performance of any act agreed to be done (h). For example, where time is not essential, a party failing to complete a sale of land on the day fixed therefor by the agreement does not then commit a breach of contract either in equity or at law (i); it is only on failure to complete within a reasonable time after that day that the contract is broken (k). The result is that, where either party makes delay in performing his part of the agreement, the most prudent course for the other is to serve a notice upon him making time of the essence of the contract, but taking care to allow him a reasonable time, from the date of service of the notice, within which to accomplish the acts he has delayed to perform (l). If after service of such a notice the party in default fail to do the required act within the time so limited, the other party will be then entitled to treat the contract as broken (m).

Breach of the contract.

(n) Above, p. 766.

(o) Above, pp. 874 sq.

(p) Above, pp. 540, 577, 578, 642, 730, 732; Seddon v. North Eastern Salt Co., Ld., 1905, 1 Ch. 326.

(q) Above, pp. 723, 729, 730, 733, 739.

(r) Above, p. 769.

(s) Above, pp. 564, 565, 568, 574, 588, 703, 704, 719, 720.

(t) Above, pp. 540, 568, 571.

(u) Above, pp. 426 sq., 589.

(x) See above, p. 427. (y) Sug. V. & P. 551; above, pp. 582 - 584.

(z) Above, pp. 426 sq., 430, 431.

(a) Above, p. 798.

(b) Above, pp. 855 sq. (bb) Above, p. 695.

(c) Consider Noble v. Edwardes, 5 Ch. D. 378; Patrick v. Milner, 2 C. P. D. 342; Howe v. Smith, 27 Ch. D. 89, 103, 104; Powell v. Marshall, 1899, 1 Q. B. 710.

(d) Above, p. 27.

Time when the contract is broken.

At what time failure to complete a sale of land is a breach of contract.

Service of notice making time essential.

(e) Above, p. 40.

(f) Above, pp. 47 - 49, 506 - 509.

(g) Above, pp. 49, 51, 506 -508.

(h) Consider Mackreth v. Marlar, 1 Cox, 259; Lloyd v. Collett, 4 Bro. C. C. 4G9, 4 Ves. 690, n.; Venn v. Cattell, 27 L. T. 469; Howe v. Smith, 27 Ch. D. 89;

Cornwall v. Henson, 1900, 2 Ch. 298.

(i) Patrick v. Milner, 2 C. P. D. 342.

(k) Howe v. Smith, 27 Ch. D. 89, 103, 104.

(l) Above, pp. 40, 50S.

(m) Above, p. 40, and cases there cited.

The effect of a breach of contract is in every case to give rise to a right of action for debt or damages against the party who commits it, at suit of the other party to the agreement: but the breach may or may not operate to discharge the other from his obligation under the contract, and to give him the option of rescinding or enforcing the contract. This arises from the fact that, according to English law, the duty created by a contract is not an entire and indivisible thing, but may consist of various separate obligations undertaken by one party; and the performance of any of these obligations may or may not be a condition precedent to his enforcing the other party's liability (n). If the obligation broken be such that its performance by the defaulting party was not essential to his enforcing the contract himself, the other party is not released from his own duty under the contract, and has merely a right of action for the breach. Thus, where a sale of land was made for a price payable by several small instalments, and the purchaser made default in paying the last instalment, it was considered that the vendor was entitled only to sue for the amount due and not to rescind the contract of sale (o). And, as we have seen (p), the breach of a pure warranty, not amounting to a condition, does not give rise to a right to avoid a sale. Breach of an obligation of this kind is no bar to the enforcement of the rest of the contract by the party in default, so long as he offer to perform the stipulation broken when insisting on the other's liability (q). But if the performance of the obligation broken be a condition precedent to the liability of the party who is not in default, the breach discharges him from his own obligation of the contract, and gives him the right, at his election, to rescind the contract or to sue upon it for the breach.

Effect of breach of contract.

Cornwall v. Henson.

(n) Above, pp. 725 - 728.

(o) Cornwall v. Henson, 1900, 2 Ch. 298.

(p) Above, pp. 724, 725.

{q) Cornwall v. Henson, ubi sup.; and consider the equitable doctrine that a contract might be specifically enforced, notwithstanding that a stipulation as to time were broken; above, pp. 47 - 49, 506 - 508.

This proposition is occasionally summarized as the discharge of the contract by breach; a term which is not perfectly accurate and may mislead a student of law. The contract is not extinguished by the breach; for no one may discharge himself from his contract by breaking it; and the other party may enforce the contract after the breach. The true sense of the expression is that one party to a contract may be discharged from his obligation thereunder by the other party's breach of the contract. This doctrine has been already mentioned (r); and it comes into operation where the parties' intention, to be gathered from the terms of the whole contract, is that the performance by one of them of his part of the contract, or of some particular stipulation contained therein, shall be a condition precedent to the other party's liability under the agreement (s). In that case, the breach by the one of his duty under the contract or stipulation discharges the other from the obligation of performing his part of the contract; and the other will be immediately entitled at his election either to rescind the contract and sue for the return of any money paid or property transferred by him thereunder, or else to affirm the contract and sue for damages for the breach (t). If, however, he choose to affirm the contract and the performance of his own duty thereunder were a condition precedent to the defaulting party's liability, then he must show that he has (so far as possible) performed, or otherwise has offered to perform his own part of his agreement in order to recover damages for the other's breach (u). Thus, on a sale of land, the performance by the vendor of his obligation to show a good title is a condition precedent to the purchaser's liability under the contract (x); and if this duty be not discharged, the purchaser may at once, without waiting for the day fixed for completion, insist upon the breach and either rescind the contract or treat it as broken accordingly (y). So, also, the fulfilment of a warranty of quality or any similar warranty or representation by the vendor which has induced the sale is, in general, a condition precedent to the purchaser's liability to carry out the contract; and a breach thereof entitles him to rescind (z), or if the stipulation broken be a part of the contract (a), to claim damages for the vendor's non-performance of the agreement. And as we have seen (b), when the title has been accepted, the stipulations requiring the vendor to convey the land sold and the purchaser to pay the price are dependent on each other; the performance of each is a condition precedent to liability under the other; and if the vendor refuse to convey (c), or the purchaser fail to pay (d), the other party is discharged from his own obligation under the contract, and may either rescind the agreement for sale or sue for damages thereunder. But if the purchaser fail to pay the price, the vendor affirming the contract cannot recover damages thereunder without proving that he has shown a good title and has offered to convey the land (e). So if the vendor should refuse to convey, the purchaser claiming damages for breach of the contract must show that he has tendered a conveyance and offered to pay the purchase money (f).