R2d § 242
Circumstances Significant in Determining When Remaining Duties Are Discharged
In determining the time after which a party's uncured material failure to render or to offer performance discharges the other party's remaining duties to render performance under the rules stated in §§ 237 and 238, the following circumstances are significant: (a) those stated in § 241; (b) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements; (c) the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party's remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important.
Professor's notes
Elements (when remaining duties are discharged after material breach): in addition to the § 241 factors, the court considers (a) those factors stated in § 241; (b) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements; (c) the extent to which the agreement provides for performance without delay, but a material failure to perform on a stated day does not of itself discharge the other party's remaining duties unless the circumstances, including the language of the agreement, indicate that performance by that day is important.
Common misunderstanding: students assume time-of-the-essence language is automatic. (c) requires more than the boilerplate phrase: the court looks at the agreement and the commercial context. Conversely, a missed deadline is not automatically immaterial just because the contract is silent on timing; (b) lets material consequences flow from delay alone where substitute arrangements turn on time.
Text
R2d § 242. Circumstances Significant in Determining When Remaining Duties Are Discharged.
In determining the time after which a party’s uncured material failure to render or to offer performance discharges the other party’s remaining duties to render performance under the rules stated in §§ 237 and 238, the following circumstances are significant:
(a) those stated in § 241;
(b) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements;
(c) the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party’s remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important.