Most contracts will, of necessity, include terms about timing, whether in relation to when goods will be delivered or services supplied. Some contracts are very specific about timing, but this in itself may not be enough if the timing is not complied with. If there is a delay and you don’t include a contract clause that time is of the essence, it is likely that you will have to allow the party in breach a reasonable time period to remedy the breach. You may already have lost confidence in them or strongly suspect they won’t be able to deliver on their promise but you will probably need to wait, suffering inconvenience and possible ongoing loss.
By making time of the essence, you are in effect, elevating the issue of time compliance to a fundamental term of the contract. Breach of a fundamental term of a contract generally means you can act faster and potentially treat the contract as ended, do what you need to do to minimise your inconvenience and loss, and then still potentially pursue the other party. Consequently, this clause is extremely important and should be carefully considered.
Ability to cancel the contract
A clause should specify which party can cancel the contract and on what terms. Care must be taken to restrict the scope of this clause to ensure the promises of each party are definable and not too wide. If they are considered too wide the contract will be rendered void and therefore unenforceable by law.
Variation of a contract
If one party agrees outside the terms of the contract to do something more than what was initially agreed, the contract will only be enforceable if the other party provides something more to make the contract proportionate.
In contract law terms, waiver can mean that a contract breach may no longer be enforceable if the wronged party is considered not to have taken action over the breach and therefore “accepted the breach” after a specified time. A typical way to deal with this issue is to include a clause clarifying scenarios and timescales for acting on a breach and what is or is not agreed by the parties as constituting a waiver. The issue can also arise in the context of ensuring that waiving a breach of one part of a contract does not constitute a general waiver.
For example, if a commercial property tenant is in rent arrears and is liable for dilapidations or damage. A landlord would want to protect the position if accepting money towards the arrears but at the same time not waiving other breaches vis dilapidations etc.
Entire Agreement clause
Including such a clause in your contract will protect you against claims that you made representations before the contract which were erroneously or deliberately ommited. This is the sort of defence which is commonly raised, either because the defendant genuinely believes it to be the case, or as a tactic, if they breach the contract.
It is important to recognise that whilst an entire agreement clause offers protection about the pre-contract dealings between the parties, it doesn’t protect against any variations, express or implied, to the contract which take place after the contract is entered into. You therefore still nee to be careful not to agree to alter the contract, which can happen by verbal or written communication or by conduct. This, again, is a commonly raised defence if there is a dispute which you as claimant, believe is straightforward i. e if the defendant simply doesn’t pay, they may argue that the reason they aren’t paying is due to some kind of agreement to vary the terms.