I entered into a construction contract under which a builder was to construct a pool at my home by a certain date. I stressed to the builder that time was of the essence. The builder did not complete the work by the agreed-upon-date. He is suing me for wrongful termination of the contract. Isn't the law on my side?
A central principle that applies to construction agreements and disputes is that one party's material breach of a contract excuses or discharges the other party's continued performance. If the contract specifies that time is of the essence, then the party that has to satisfy that obligation must timely perform before requiring the other party to perform her end of the agreement. The builder's failure to timely perform excuses your performance. One of the factors that the law deems significant for purposes of deciding whether a party's obligations are excused under a contract because of the other party's material breach is whether the contract demanded performance without delay. If the agreement states that performance by a certain date is important, then a material failure to perform by that date discharges the other party's duty.
Sources: Mustang Pipeline Company, Inc. v. Driver Pipeline Company, Inc., 134 S.W.3d
195 (TX, 2004);
RESTATEMENT (SECOND) OF CONTRACTS § 241 (1981)
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