[1950] 1 All ER 420
Court of Appeal
Rickards agreed to build a car for Oppenheim within seven months, time being of the essence of the contract. The seven months began to run from 20 August 1947. The car was not ready by 20 March 1948 (the last date for delivery). Oppenheim did not cancel the contract as he was entitled to do so but instead he waived his right as regards the stipulation of time by asking for delivery in time for Ascot. The car was not ready for Ascot and on 29 June Oppenheim wrote to Rickards saying
"Further to my conversation with Mr Musk today, I regret that I shall be unable, unless my plans change, to accept delivery of the Rolls you are making for me after 25 July. For six months I have had a reservation to take a car abroad on 3 August for my holiday and it would appear to me to be impossible for me to alter this date. I shall therefore have to buy another car."
The car was still not ready for that date so Oppenheim bought another car.
The issue before the Court of Appeal was whether Oppenheim, having waived his original right as regards the stipulation of time, could 'go back' on that waiver and once again make time the essence of the contract.
Denning LJ
'... If the defendant, as he did, led the plaintiffs to believe that he would not insist on the stipulation as to time, and that, if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation in regard to time against them. Whether it be called waiver or forbearance on his part, or an agreed variation or substituted performance, does not matter. It is a kind of estoppel. By his conduct he made a promise not to insist on his strict legal rights. That promise was intended to be binding, intended to be acted on, and was, in fact, acted on. He cannot afterwards go back on it. That, I think, follows from Panoutsos v Raymond Hadley Corpn. of New York, a decision of this court, and it was also anticipated in Bruner v Moore. It is a particular application of the principle which I endeavoured to state in Central London Property Trust Ltd v High Trees House Ltd.
Therefore, if the matter stopped there, the plaintiffs could have said that, notwithstanding that more than seven months had elapsed, the defendant was bound to accept, but the matter does not stop there, because delivery was not given in compliance with the requests of the defendant. Time and time again the defendant pressed for delivery, time and time again he was assured that he would have early delivery, but he never got satisfaction, and eventually at the end of June he gave notice saying that, unless the car was delivered by July 25, he would not accept it. The question thus arises whether he was entitled to give such a notice, making time of the essence, and that is the question which counsel for the plaintiffs has argued before us... [T]he defendant was entitled to give a notice bringing the matter to a head. It would be most unreasonable if, having been lenient and having waived the initial expressed time, he should thereby have prevented himself from ever thereafter insisting on reasonably quick delivery. In my judgment, he was entitled to give a reasonable notice making time of the essence of the matter. Adequate protection to the suppliers is given by the requirement that the notice should be reasonable.
The next question, therefore, is: Was this a reasonable notice? Counsel for the plaintiffs argued that it was not. He said that a reasonable notice must give sufficient time for the work then outstanding to be completed, and that, on the evidence in this case, four weeks was not a reasonable time because it would, and did, in fact, require three and a half months to complete it. In my opinion, however, the words of Lord Parker of Waddington in Stickney v Keeble apply to such a case as the present, just as much as they do to a contract for the sale of land. Lord Parker said:
"In considering whether the time so limited is a reasonable time the court will consider all the circumstances of the case. No doubt what remains to be done at the date of the notice is of importance, but it is by no means the only relevant fact. The fact that the purchaser has continually been pressing for completion, or has before given similar notices which he has waived, or that it is specially important to him to obtain early completion, are equally relevant facts..."
To that statement I would add, in the present case, the fact that the original contract made time of the essence. In this case, not only did the defendant press continually for delivery, not only was he given promises of speedy delivery, but, on the very day before he gave the notice, he was told by the sub-contractors' manager, who was in charge of the work, that it would be ready within two weeks. He then gave a four weeks' notice. The judge found that it was a reasonable notice and, in my judgment, there is no ground on which this court could in any way differ from that finding. The reasonableness of the notice must, of course, be judged at the time at which it is given. It cannot be held to be a bad notice because, after it is given, the suppliers find themselves in unanticipated difficulties in making delivery.
The notice of June 29, 1948, was, therefore, a perfectly good notice so as to make time of the essence of the contract...
The case, therefore, comes down to this. There was a contract by the plaintiffs to supply and fix a body on the chassis within six or seven months. They did not do it. The defendant waived that stipulation. For three months after the time had expired he pressed them for delivery, asking for it first for Ascot and then for his holiday abroad. But still they did not deliver it. Eventually at the end of June, being tired of waiting any longer, he gave a four weeks' notice and said: "At all events, if you do not supply it at the end of four weeks I must cancel," and he did cancel. I see no injustice to the plaintiffs in saying that that was a reasonable notice. Having originally stipulated for six to seven months, having waited eleven months, and still not getting delivery, the defendant was entitled to cancel the contract.'