Advice on a clause in a contract
Thread poster: Charlotte Monnier

Charlotte Monnier  Identity Verified
United Kingdom
Local time: 22:29
English to French
+ ...
Feb 21, 2007

Hi all,

Does anyone know what the first sentence of this clause means and what it implies in case it is not respected? Does it mean you can be sued? To what extent are you liable? It is in the terms and conditions of an agency I have applied to work for. Is it common practice?

"Time shall be of the essence for delivery of the Services. The date of delivery shall however only be binding if the Client confirms the order by the means [mail, electronic mail, or fax ] mentioned in Article 2 of this Agreement."

Thanks a lot,

Charlotte


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xxxLia Fail  Identity Verified
Spain
Local time: 23:29
Spanish to English
+ ...
general statement Feb 22, 2007

Charlotte Monnier wrote:


Hi all,

Does anyone know what the first sentence of this clause means and what it implies in case it is not respected? Does it mean you can be sued? To what extent are you liable? It is in the terms and conditions of an agency I have applied to work for. Is it common practice?

"Time shall be of the essence for delivery of the Services. The date of delivery shall however only be binding if the Client confirms the order by the means [mail, electronic mail, or fax ] mentioned in Article 2 of this Agreement."

Thanks a lot,

Charlotte


That's a general statement as far as you are concerned, i.e., time is very important..."

What really matters is that delivery is "only binding" if the order has been confirmed. So basically, don't start a job a) unless you are sure you can do it and b) unless you have a purchase order and have confirmed it.


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Spencer Allman
United Kingdom
Local time: 22:29
Finnish to English
Agree Feb 22, 2007

It just means it is very important (crucial, thus essential/essence)

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Charlotte Monnier  Identity Verified
United Kingdom
Local time: 22:29
English to French
+ ...
TOPIC STARTER
Thanks! Feb 22, 2007

Hi Spencer and Lia,

Thanks a lot for your replies, it does help.

Kind regards,

Charlotte


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 22:29
Dutch to English
+ ...
Of the essence = condition Feb 22, 2007

No - "of the essence" is not just a general statement in law.

Sometimes, instead of using the word condition, a lawyer will say that an obligation is "of the essence". This is a way of saying that if you do not carry out the particular term of the contract you will be in breach and the contract can be terminated and/or you can be sued for damages arising from that breach.

Not to be taken lightly - deadlines (once confirmed) are sacrosanct in this case and failure to meet one means you can (and will most probably) be held in breach.

You'd have to check what a) the contract and b) the law of the country governing the contract stipulate with regard to force majeure and any other possible defences in the case of late delivery, etc.

Hope this helps
Deborah

[Edited at 2007-02-22 13:04]


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Andy Watkinson
Spain
Local time: 23:29
Member
Catalan to English
+ ...
Thank you, LL Feb 22, 2007

[quote}No - "of the essence" is not just a general statement in law."[/quote]

Not only saved my time, but also expressed it better than I would have.

Andy


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Charlotte Monnier  Identity Verified
United Kingdom
Local time: 22:29
English to French
+ ...
TOPIC STARTER
THANKS clause in a contract Feb 22, 2007

Hi all,

I just wanted to thank you all for your contributions and answers.

Charlotte


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xxxLia Fail  Identity Verified
Spain
Local time: 23:29
Spanish to English
+ ...
thanks for clarification...but I have a doubt:-) Feb 22, 2007

Lawyer-Linguist wrote:

No - "of the essence" is not just a general statement in law.

Sometimes, instead of using the word condition, a lawyer will say that an obligation is "of the essence". This is a way of saying that if you do not carry out the particular term of the contract you will be in breach and the contract can be terminated and/or you can be sued for damages arising from that breach.

Not to be taken lightly - deadlines (once confirmed) are sacrosanct in this case and failure to meet one means you can (and will most probably) be held in breach.

You'd have to check what a) the contract and b) the law of the country governing the contract stipulate with regard to force majeure and any other possible defences in the case of late delivery, etc.

Hope this helps
Deborah

[Edited at 2007-02-22 13:04]


Thanks for the clarification, but to my mind, your interpretation would seem to imply a contradiction in the 2 sentences, and I'm curious to know how you see it:-)

"Time shall be of the essence for delivery of the Services. The date of delivery shall however ****only*** be binding ***if*** the Client confirms the order by the means [mail, electronic mail, or fax ] mentioned in Article 2 of this Agreement."

In the first sentence, according to your interpretation, if one fails to meet the delivery deadline, one is in breach, and that's it, full stop... However, the way I see it, this first sentence is a broad statement that is qualified in the next sentence.

The next sentence - more specific - indicates precisely when delivery is (and by implication, is not) binding, using the words "only...if". Or put another way, it says:

a) IF a confirmed agreement EXISTS between the parties as to deadline, then failing the deadline is breach

b) IF NO confirmed agreement EXISTS between the parties as to the deadline, then the date of delivery is NOT binding.

TIA:-)







[Edited at 2007-02-22 21:32]


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 22:29
Dutch to English
+ ...
No contradiction Feb 22, 2007

No contradiction at all. Read carefully what I said - "deadlines (once confirmed) are sacrosanct in this case and failure to meet one means you can (and will most probably) be held in breach."

The wording "of the essence" introduces a condition definitely not a "broad statement" in law. It goes to the very essence, i.e. the core of what this contract is based on.

The second part merely clarifies how, when and if that condition kicks in (comes into effect). It is not the condition itself - the first part is. The condition is merely what the law calls suspensive. (dependent on something else - e.g. issuing of a PO that stipulates the deadline).

That does not detract from the fact that "of the essence" in law = a condition (as opposed to a mere broad/introductory statement).

Stock phrases like this are incorporated in contracts for a reason - they've been tried and tested in the courts over time and shouldn't be seen as some type of toothless introduction - the alarm bells would go off for any lawyer reading this, which is why I referred Charlotte to the clause dealing with force majeure and other cases of supervening impossibility to find out how wide the possible defences to late delivery are framed, i.e. whether they would stretch as far as occupational disability (illness, accidents etc).


[Edited at 2007-02-22 23:38]


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xxxLia Fail  Identity Verified
Spain
Local time: 23:29
Spanish to English
+ ...
once confirmed....so, what if not confirmed? Feb 23, 2007

Lawyer-Linguist wrote:

No contradiction at all. Read carefully what I said - "deadlines (once confirmed) are sacrosanct in this case and failure to meet one means you can (and will most probably) be held in breach."

The wording "of the essence" introduces a condition definitely not a "broad statement" in law. It goes to the very essence, i.e. the core of what this contract is based on.

The second part merely clarifies how, when and if that condition kicks in (comes into effect). It is not the condition itself - the first part is. The condition is merely what the law calls suspensive. (dependent on something else - e.g. issuing of a PO that stipulates the deadline).

That does not detract from the fact that "of the essence" in law = a condition (as opposed to a mere broad/introductory statement).

Stock phrases like this are incorporated in contracts for a reason - they've been tried and tested in the courts over time and shouldn't be seen as some type of toothless introduction - the alarm bells would go off for any lawyer reading this, which is why I referred Charlotte to the clause dealing with force majeure and other cases of supervening impossibility to find out how wide the possible defences to late delivery are framed, i.e. whether they would stretch as far as occupational disability (illness, accidents etc).


[Edited at 2007-02-22 23:38]


Thanks for the reply, LL:-)

A 'standard' reading ...which is mine, if I was wondering how bound I would be by this statement, is that this first sentence makes a statement that is further qualified by the second sentence, and, moreover, it's what's stated in the 2nd sentence that really binds me. i.e., if I/client fail to spell out precise conditions for delivery, then I cannot be held in breach.

You underline "once confirmed". My point is that the 2nd sentence is the one that complies with this "once confirmed" function, by spelling out more precise conditions of what could be breach/non-breach.

Admittedly, I'm reading as someone who might accept such a clause, not as a lawyer, but as a translator/ordinary individual/Josephine Soap, although also, I have to admit, with an interest in figuring out why a lawyer would read this so differently:-)

To me this is plain English - an opening statement that is further qualified. To a lawyer, this has depths of meaning - apparently - that go beyond ordinary linguistic comprehension of how words are put together.

You have me worried, as I seem to do nothing lately that isn't to do with lawyers over various issues that have come to a head in my private life:-) I'm going to develop a paranoia in trying to deal with linguistic construction as opposed to legalistic construction:-(


I have just read your last post , comments as follows:

You say: ...... "deadlines (once confirmed) are sacrosanct in this case and failure to meet one means you can (and will most probably) be held in breach."

I say: The first sentence states, essentially, that 'time is a crucial aspect of delivery'. That I know, as a translator AND as the 'ordinary (wo)man in the street'. Noone needs --necessarily -- to tell any individual who works for someone else or someone who rents a flat and who has to pay their rent, that 'time of delivery' (of a service, of payment) is 'of the essence', becuase it's common knowledge. That said, as a lawyer, I certainly would want that spelled out in black & white in a contract -- most definitely:-) In other words, we'll assume that lawyers simply leave NOTHING to chance, whereas ordinary act -- often very innocently and often with negative consequences-- on 'good faith'.

You say: The wording "of the essence" introduces a condition, definitely not a "broad statement" in law. It goes to the very essence, i.e. the core of what this contract is based on.

I say: Yes, it is a broad statement ("it goes to teh essence", i.e. it underlines the contract as a general statement in regard to the contract. Essence = central meaning). Maybe the notion of 'broad statement' is anathema to a lawyer, but not to the ordinary (wo)man in the street who reads it, who makes generalisations before they consider exceptions. I can certainly understand that such a sentence EMBODIES a key notion in the contract, yet it's the next sentence that actually enlarges on it in a way that is fully comprehensible to the person who may decide whether or not to accept the condition. Put it this way, if I was asked to accept this contract ON THE BASIS OF THIS FIRST SENTENCE STANDING ALONE, I wouldn't dream of signing, becuase of possible acts of nature, God, force majeure, computer failures, etc..,. BUT qualified as it is by the 2nd sentence, I would sign. What's more if I was offered the contract EXCLUDING the first sentence but INCLUDING the 2nd one I would probably sign. (It would have to be slightly reworded...for reasons of coherence, otherwise - as the ordinary (wo)man in the street - I would be confused: "The date of delivery shall be binding ONCE the Client confirms the order ...."). And of course, situations of force majeure, etc would have to be spelled out as exceptions.

You say: The second part merely clarifies how, when and if that condition kicks in (comes into effect). It is not the condition itself - the first part is. The condition is merely what the law calls suspensive. (dependent on something else - e.g. issuing of a PO that stipulates the deadline).

I say: Again, from the point of view of the person possibly bound by this contract, the 2nd sentence is the one that going to land me in hot water or otherwise, becuase the 2nd sentence is the one that clarifies - to me, the "man on the Clapham omnibus"(to quote Greer LJ in Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205 referring to McQuire v. Western Morning News [1903] 2 KB 100) - the conditions in which I will/will not be bound by this clause/contract. That said, I see your point, that the 1st sentence is a statement that says that 'time' is a key and crucial element of this contract. It's a declaration, and an important one. This sentence, in linguistic terms, sets 'theme' (the topic), whereas the 2nd sentence is 'rheme', i.e., the 'thing being said about the theme'. They work together, although maybe the 2nd sentence, with modifications that incorporated an element of the 'theme' could indeed stand alone (i.e., linguistic elements relating back to the first sentence should either be adapted or removed, as in my example earlier). As mentioned, though, the first sentence, standing alone, would be too 'broad' to be acceptable.

You say: That does not detract from the fact that "of the essence" in law = a condition (as opposed to a mere broad/introductory statement).

I say: I'm obviously expressing myself in non-legalistic language, rather 'loose' perhaps. If I was drawing up a contract with a translator, however, most certainly I would want such a 'broad' statement, as a linguistic 'thematic' device (for me) that emphasised a key element in the contract (and, for you, an element defining the 'essence' of the agreement), as it would highlight/embody/spell out in B&W what is more than obvious to most professional translators (but which cannot be left open to any kind of doubt) --that a deadline - but only ONCE CONFIRMED, as you yourself qualify in your explanation -- is sacred. But as I said, I understand that a lawyer does not want to leave anything to chance.

You say: Stock phrases like this are incorporated in contracts for a reason - they've been tried and tested in the courts over time and shouldn't be seen as some type of toothless introduction - the alarm bells would go off for any lawyer reading this, which is why I referred Charlotte to the clause dealing with force majeure and other cases of supervening impossibility to find out how wide the possible defences to late delivery are framed, i.e. whether they would stretch as far as occupational disability (illness, accidents etc).

I say: In this I cannot argue with you, becuase I see the point of your argument, that one should check OTHER qualifications (not just the next sentence) to this statement in the contract as a WHOLE, just like any decent translator cannot ideally/realistically translate a single sentence or 2 sentences, without having the full context of the ENTIRE text-- which often goes even beyond the text itself, to the production-communication situation. The statement (sentence 1) is still 'broad', but now I'm taking a lawyer's perspective on broad - but that of the lawyer who drafted this agreement on behalf of his client - a sub-contractor to translators. So, Charlotte should check out other clauses that may, in some/any way, be related to this clause.

Oddly enough, I feel I have failed as a translator - for not wanting to know what was in the REST of the contract! whereas you, LL, have shown yourself to be a true blue lawyer! I (think I) finally see your point (correct me if I'm wrong), although it only was made clear (to me at least) at the end of your 2nd posting.

Thanks for an interesting exchange:-)





[Edited at 2007-02-23 04:29]

[Edited at 2007-02-23 04:31]


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 22:29
Dutch to English
+ ...
In a nutshell .... your question: what if it is not confirmed? Feb 23, 2007

If the deadline is not confirmed the CONDITION (that time is of the essence) simply falls away.

If the condition falls away, there is nothing to breach.

Which squarely brings us back to my initial statement why in law it IS a condition.

And just to round things off: - what is a condition? It is a fundamental or essential term. The performance of a condition is normally so important that if the party so obliged does not carry it out, you not only have the right to claim damages but also to terminate the contract.

And no "failure" as a translator at all - this job is a continual learning curve. We've just got be aware in law especially that almost every word is there for a reason.

Have a good weekend
Debs






[Edited at 2007-02-23 10:10]


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Anne Gillard-Groddeck  Identity Verified
Local time: 23:29
German to English
What about the asker? Feb 23, 2007

Let us say that it is likely to be a condition (an essential term triggering inter alia termination if the contract is breached)……………….. if

A contract is formed – there has to be agreement. How can there be agreement when you don't know the meaning of what you are reading?

The agency should be fair in its wording, i.e. say that if you submit work after the deadline, they reserve the right to terminate the contract (and claim damages).

Is this your intention? Is this reasonable? The fact that one party to a contract calls a term "a condition" does not necessarily make it a condition (Schuler v. Wickman Machine Tool Sales Ltd [1974] in which the word "condition" in a contract was interpreted as being a "strong indication" that the contract should be interpreted in this way, but that the word was not "conclusive"; in this particular case the court held this to be an unreasonable outcome, as no provision was made in the contract for alternative arrangements; as the contract was unreasonable it could not reflect the intentions of the parties – NOTE THE PLURAL FORM.)

Are you really to be expected to consult a lawyer before doing any jobs?

Note that ss. 13 to 15 of the Supply of Goods and Services Act 1982 (I see the asker is from the UK) specifies terms for the performance of services in the absence of any express contract.

The Act stipulates that SERVICES are to be performed "within a reasonable time". The Act describes this as a "term", not a condition.

The provisions relating to the supply of GOODS, by contrast, are conditions.

The fact that the provisions of the Act in relation to services are merely "terms" means that these are what are known as innominate terms (neither warranties nor conditions – a warranty is a minor term in a contract not entailing termination).

If an innomiate term is breached, the effect is measured by the outcome, i.e. what effect does the breach have on the innocent party?

A unilateral attempt by one party to impose an arrangement more rigorous than the statutory provisions is unlikely to be regarded as reasonable in weighing up the relations between the two sides, but note I write "likely" or rather "unlikely".


I would cross out this term and state that the provision of your services shall be governed by the 1982 Act.

This is only what is fair and reasonable.


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xxxAdrian MM.
Local time: 23:29
French to English
+ ...
Notice makes time of the essence in Énglish law Feb 23, 2007

I agree with most of the above comments.

The general principle in UK contract law is that time is *implied* to be of the essence anyway, unless trans. agencies contract out with cheeky wording like: 'Payment to the translator or interpreter for the job shall NOT be of the essence' (actual case).

The (agency)client's confirmation is tantamount to service of *express* notice making time of the essence at English Common Law in general and is often used in conveyancing transactions in particular.

So, unfortunately, yes. You can be sued on the basis of a breach ('non-respect') of such a fundamental term.

I don't see any virtue in inserting the airy-fairy 'reasonable time' stipulation of the UK Supply of Goods and Services Act 1982, as what is a 'reasonable' time for supplying a translation is hopelessly vague and can be argued about until the cows come home, so is likely to cause needless uncertainty and expense.


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