In Blackstock, Justice adopted these words:
"The general rule, where time is made of the essence of a contract in relation to the sale of the land, is that default in performance by one party entitles the other, in the absence of an estoppel, or a waiver of the default or an acquiescence in such default, to cancel or determine the contract and to resist its specific performance.
"But time can only be insisted upon as of the essence of the agreement by a litigant who has shown himself ready, desirous, prompt and eager to fulfil his agreement; has not been himself in default or the cause of the delay; and has not waived his right by subsequently recognizing the contract as subsisting."
In Danforth, Justice Rose of the Ontario court wrote:
"The stipulation that time shall be of the essence of the agreement does not mean that, if either party fails to complete within the time specified, the agreement shall be at an end. If it had that meaning, either party could escape his obligations by making default. What it does mean is that, if either party fails to do his part within the time specified, the other party may declare the agreement to be at an end, if he so desires. The party not in default has an option; he may elect to keep the agreement in force or he may elect to terminate it. If he elects to keep it in force he cannot afterwards say that it terminated on the expiration of the specified time; but that is not because he has effected any variation of it, or because he effected any variation of it, or because he effected any variation of it (sic) has waived any right to terminate it; it is because he has exercised the right which he had under it."
REFERENCES:
- Blackstock v Jeamen Farms (1981) 13 Sask. R. 119 (SKCA)
- Danforth Heights Ltd. v McDermid Bros. 52 OLR 412 (Ontario, 1922)
- Duhaime, Lloyd, Contract Law Dictionary