Can you make time of the essence if a contract is silent on the point, asks John Sharples
You have a contract which requires you to do something by a certain date or within a reasonable period of time. You don’t. Fortunately the contract does not make time of the essence. So the other party serves a notice purporting to make it so. You fail to comply with that too. Now the other side has you on toast and can terminate the contract forthwith. Simples!
Well, not quite. As Sir Terence Etherton said at first instance in Urban 1 (Blonk Street) v Ayres [2012] EWHC 2765 (Ch): “Even today aspects of the law relating to time provisions in contracts for the sale of land and the relevance of notices to complete can be puzzling and there is still room for clarification of the law.” In particular, recent cases have struggled with two questions: what does serving such a notice really do, if the contract is silent on the point? And what is the effect of failing to comply with it? Those cases are: Samarenko v Dawn
