§ 19-9 Contract - Time of the Essence

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 19-9 Contract - Time of the Essence

While express terms and provisions in a contract as to time are effective and cannot be ignored, such terms and provisions are often stated in such a manner as to require construction, and must be construed according to the intention of the parties.

Where the parties have agreed in their contract that performance is to be made within a specified time, then in that event, time is of the essence of the contractual agreement.

That means that performance by one party within the time specified in the contract is essential in order that he may require performance from the other party. Time may be made of the essence by the express stipulation of the parties in their contract, but it need not be stated in exact language. The provision that time is of the essence of the agreement may be inferred from the language of the contract and the conduct of the parties.

In trying to determine from the language of the contract and the conduct of the parties whether time is of the essence of a contract, the question must be one of the intent of the parties. There must be something connected with the purpose of the contract and the circumstances surrounding it making it apparent that the parties intended that the contract must be performed within the time stated. [In that regard, I charge you that the presence of provisions in a building contract authorizing the buyer to make changes in the plans during the progress of the work supports the interpretation that the parties did not intend time to be of the essence.]

Where time is not originally of the essence of the contract, it may become so by agreement extending the time for performance to a particular date. Time may be made of the essence by one party giving notice to the other that he will insist on a strict performance, or if the time of performance has arrived or is passed, that he will insist on performance by a certain date, provided the time allowed by the notice is reasonable, which is a question of fact depending on the circumstances of the particular case. On the other hand, upon the unrestricted waiver of the time for the performance of the contract, the condition ceases to be the essence of the contract.

If you find from all of the evidence that time was of the essence of this contract, then your inquiry must go further. Where time is of the essence of a contract, and there has been a delay, the other party would have the right to rescind the contract.

Where time is of the...