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Scope of CCLA.pdf-Scope of CCLA Exclusion of Sale
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Scope_of_CCLA.pdf-Scope of CCLA Exclusion of Sale
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This was an
impliedly essential term
No matter how trivial, time of the essence clauses
are conditional in mercantile contracts
This is for commercial certainty
Rejection of HK Fir test for essential terms (
does the
breach substantially deprive the promisee of the whole
benefit of the contract?),
whether a term is essential or not
is a matter of construction.
By Notice
A notice of the innocent party making time of the essence
Performing in a reasonable time always essential,
but unclear what reasonable is
A party subject to unreasonable delay can issue a
notice making time of the essence, evidence P
thought that time frame reasonableness was
Notification clarifies ambiguity to what time is
reasonable, so its breach repudiates
Macindoe v Mainzeal Group
Sale of building - $1.3mil + GST to be paid in
Buyer failed to make payments on time
Vendor responded with a notice requiring payment
and the time which they were due
Breach was substantial - each installment was large
and comprised a significant part of the purchase
price and so repudiation accepted
The test is objective - essentially a matter of fact,
degree and impression

Page 6
s 36
s 38
s 41
s 42
A serious matter not likely to be inferred - a refusal to the essential promises
Anticipatory Repudiation
Can act as the waiver of the condition precedent and release the other party from
further performance of their obligations under the contract
When one party communicate their intention not to perform the contract on due date -
the innocent party does not have to wait until the breach to bring their claim
Cort v The Ambergate Railway
D contracted for the supply of iron chairs for the railway company
After receiving some of the chairs, they told P that they would not accept any more or
pay for any more
Renunciation of obligations prior to the date of performance - if the seller acted on this,
could they sue the buyer for actual breach on the day of performance (the breach being not
accepting the chairs)?
If they can sue, what do they need to show?
Sellers must show that they were ready and willing to perform up until the time of
P does not have to show ready and willingness by producing the rest of the chairs that
would incur expenditure and which they knew the buyer would not accept.
Waste of resources
Non-completion not P’s fault
They would’ve performed but for the repudiation
price agreed - mitigation costs (ie. reselling on market, savings by not producing all
the other chairs)
Hochster v De La Tour
Employer makes agreement with P (courier) in April for a 3 month engagement to start
on June 1st
Courier to be paid $10/month
11th May → employer repudiates and P accepts
Issues writ on 22nd May

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