Time is of the Essence

A "time is of the essence" provision means that a party must perform its contractual obligations at a specific date and time. 
SAMPLE PROVISIONS
Time is of the essence with respect to performance of this Agreement.
Time is of the essence in this Agreement with respect to all of the terms, conditions and covenants herein contained
Time is of the essence with respect to the performance of every provision of this License in which time of performance is a factor.
Drafters include the phrase to imply that failure to perform on some timeline will breach the contract.

 

Recommendations

Historically, courts have not agreed with the above approach. They often take the totality of the circumstances into account.
It’s more important for the parties to clearly articulate the dates and times required for performance; "time is of the essence" clauses are typically superfluous, often vague boilerplate. Courts and parties long for clearer language.

As a result, we recommend:
  1. Clearly articulating the dates and times required for performance.
  2. Deleting “time is of the essence” provisions.

Ken is an advisor to LegalSifter, a consultant, lawyer, writer, and speaker on contract drafting. He is the author of the bestselling book, A Manual of Style for Contract Drafting, and the world-renowned Adams on Contract Drafting blog.

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