Tender of performance

When one party cannot complete his obligation under the contract without the help of the other party who refuses his offer to perform.

Tender of performance occurs when one party tries (offers), but cannot complete, his obligation under the contract because he is prevented from doing so by the other party.

In Startup v Macdonald (1843) the plaintiff agreed to sell oil to the defendant and that it would be delivered within the last 14 days of March.  The plaintiff tried to deliver the oil on the 31st March but as it was late at night the defendant refused to accept the delivery.  The court ruled that the offer was as good as performance and the plaintiff was entitled to damages for breach by the defendant.

 


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