The terms of a contract can be divided into two types:
1. Non-essential terms otherwise called warranties. The court will order damages to compensate you rather than allow you to walk away. Therefore, small breaches by the other party are not much help in getting out of a contract.
2. Essential terms otherwise called conditions or material terms. For instance, a conditional contract where you need to be satisfied as to finance or due diligence within 14 days. However, essential terms (even where the contract is marked “time of the essence”) are divided into yes you got it - two types:
a. Where substantial performance is sometimes acceptable e.g. The seller does not have a copy of a stamped lease at the completion of the sale of a property. It is common sense that a buyer should not be permitted to terminate for a minor issue.
b. Where there must be strict compliance e.g. Handing over the money on time.
In short, all terms are not created equal.
© Paul Brennan 2018. All rights Reserved.
Extract from "The Art of War, Peace & Palaver: The Contentious Guide to Legal Disputes"
