Startup v Macdonald
A valid tender of performance that is wrongly refused is treated as performance, and the refusing party is in breach.
Facts
Startup agreed to sell ten tons of linseed oil to Macdonald, to be delivered within the last 14 days of March. Startup delivered the oil at 8.30pm on 31 March, a Saturday. Macdonald refused to accept it because of the late hour, and Startup sued for breach of contract.
Legal principle
The court held that Startup was entitled to damages. Although delivery late in the evening was inconvenient, it was within the time allowed by the contract, and Startup had done everything the contract required by tendering the oil. A tender of performance that is in accordance with the contract, and is refused by the other party, is treated as equivalent to performance, so the seller is discharged from further liability and can sue for non acceptance. Today, the Sale of Goods Act 1979 requires delivery to be made at a reasonable hour.
Related cases on discharge and breach
- Avery v Bowden (1855) 5 E & B 714
- Bolton v Mahadeva [1972] 1 WLR 1009
- Cutter v Powell (1795) 6 Term Rep 320
- Federal Commerce & Navigation Co Ltd v Molena Alpha Inc (The Nanfri) [1979] AC 757
- Fercometal SARL v Mediterranean Shipping Co SA (The Simona) [1989] AC 788
- Frost v Knight (1872) LR 7 Ex 111
- Geys v Société Générale [2012] UKSC 63, [2013] 1 AC 523
- Hochster v De la Tour (1853) 2 E & B 678
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
