A right of withdrawal had been granted to a shipowner under a time charterparty if the charterer failed to make a punctual monthly payment of hire.
Held: If the monthly hire had not been punctually paid, the right of withdrawal remained even after the hire had been paid. The right to withdraw only ceased to exist, if it had been in some way waived, though the shipowner must exercise his right to withdraw the ship ‘within a reasonable time after default. Here, although the bank was an agent of the alleged waiving party, it did not have sufficient authority to waive a right of the principal.
The delay necessary in order to amount to a waiver will depend upon the terms of the contract in question and all the circumstances of the case.
If the person said to have waived the breach lacked the actual or ostensible authority to waive the right or rights concerned there will be no waiver.
Lord Wilberforce said that: ‘Although the word ‘waiver’, like ‘estoppel’, covers a variety of situations different in their legal nature, and tends to be indiscriminately used by the courts as a means of relieving parties from bargains or the consequences of bargains which are thought to be harsh or deserving of relief, in the present context what is relied on is clear enough. The charterers had failed to make a punctual payment but it was open to the owners to accept a late payment as if it were punctual, with the consequence that they could not thereafter rely on the default as entitling them to withdraw. All that is needed to establish waiver, in this sense, of the committed breach of contract, is evidence, clear and unequivocal, that such acceptance has taken place.’
Lord Wilberforce
[1977] AC 850, [1977] 1 Lloyds Rep 315
England and Wales
Cited by:
Distinguished – McGahon v Crest Nicholson Regeneration Ltd CA 21-Jul-2010
The claimants contracted to purchase an apartment ‘off-plan’. The contract was conditional on the grant of a head lease. Notice to complete was served by the developers did not disclose that the head lease had not been granted until after the date . .
Cited – John Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.421000
