When must a party comply with a provision in a contract which is silent as to its time of performance
When must a party comply with a provision in a contract which is silent as to its time of performance
Jonathan Roch, April, 2, 2012
Before the Ontario Superior Court of Justice, Jonathan Roch of MBM Intellectual Property Law LLP, representing Skipper Online Services (SOS) Inc. d.b.a. Boaterexam.com, successfully defended an application (No. 11-52746) by 2030564 Ontario d.b.a. Boatsmart Canada for damages relating to an alleged breach of a settlement agreement for failing to immediately stop accepting Boatsmart's vouchers as payment following the execution of the agreement.
The agreement was executed by Boaterexam.com the afternoon of August 10, 2011. The steps to remove their ability to accept Boatsmart vouchers as required by the settlement agreement were commenced immediately but due to technical issue, which could have disabled the Boaterexam.com computer system over the weekend, the online deployment of the changes was only implemented on Monday, August 15, 2011.
The settlement agreement set out time frames for a number of different actions however it was silent on this particular issue. Madame Justice Parfett confirmed the well known principle that where no time for performance is fixed in an agreement, a reasonable time will be implied. As such, she acknowledged that the 5 days taken by Boaterexam.com to implement the changes were reasonable.
Parties entering agreements should keep in mind that their subjective intentions with respect to the reasonable period of time to perform certain obligations may be substantially different. If a party wishes that performance of an obligation be done within a specific timeframe (e.g. the day the agreement is executed), these terms should be conveyed to the other side and explicitly detailed in their agreement.
