LATE DELIVERY OF GOODS AND PERFORMANCE OF SERVICES

Where the contract specifies a time for performance and time for performance is of the essence then on late performance the consumer can treat the contract as discharged and may also be able to claim damages. Time for performance is not generally ‘of the essence’ unless:

1. The contract stipulates that it is of the essence; or

2. The nature of the subject-matter of the contract or the surrounding circumstances show that it is of the essence.

Where the contract merely specifies a time for performance but does not fix it as of the essence then late performance does not entitle the consumer to treat the contract as discharged. The consumer’s remedy is a claim for damages. However where the contract has not been performed on time then the consumer may serve a notice to perform the contract within a reasonable time and if it still not performed in accordance with the stipulation in the notice the consumer may treat the contract as discharged and claim damages.

Where the contract does not specify a time for performance then by section 14 of the Supply of Goods and Services Act 1982 a “reasonable” time is implied into the contract. If the contract is not performed within a “reasonable” period then late performance does not entitle the consumer to treat the contract as discharged. The consumer’s remedy is in a claim for damages. However where the contract has not been performed within reasonable time the consumer may serve a notice to perform the contract fixing a date for performance which must be a further reasonable period and if it still not performed in accordance with the stipulation in the notice the consumer may treat the contract as discharged and claim damages.