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Time for Performance of a Contract: Have they breached the contract yet?

By Burg Simpson
October 4, 2013
3 min read

Probably the most common cause of action related to contracts is for breach of contract. A breach of contract occurs when one party fails to perform her duty as provided for in the contract.

A simple example: Builder and Seller enter into a contract that states: “Builder agrees to construct a wooden fence around Owner’s property. Owner agrees to pay Builder $500.” Subsequently, Builder constructs a wooden fence around Owner’s property. Owner refuses to pay Builder. Builder likely has a claim for Owner’s breach of contract.

In the above example, a breach of contract arose because Owner failed to perform his contractual duty, to pay Builder $500. What if the tables were turned and, instead, immediately after the contract was signed Owner paid Builder the $500. How long must Owner wait for Builder to construct her fence? At what point can Owner sue Builder for a breach of the contract?

Where no exact time for performance is fixed by the contract terms, Colorado law provides that the performance shall be made within “a reasonable time.” Shull v. Sexton, 154 Colo. 311 (Colo. 1964). This is known as an implied contractual term. What exactly is “reasonable time”? This is a case-by-case determination based upon the particular circumstances of the contract at issue. A court will often look at the expectations of the parties at the time the contract was entered into and also the time necessary to complete contractual duties.

Going back to Owner and Builder; the length of time Owner must wait for her fence will be determined by the circumstances of her contract with Builder. A number of factors might change this calculus. Does Owner know that Builder operates without any other employees? Did Builder know that Owner’s fence was a replacement for her damaged dog run? Did Owner pay a premium over Builder’s normal price with an expectation of a rush job? Is Builder constructing fences around several of Owner’s neighbor’s properties at the same time? In any event, Builder has a duty to construct Owner’s fence within a “reasonable” time.

Making a determination of implied “reasonable” contractual terms is often challenging. This problem can be compounded when a precise timeframe for performance of a contract is expected. The experienced attorneys in the Commercial Litigation Group at Burg Simpson are available to assist you in making these determinations. In the event that legal action is needed to enforce implied contractual terms, our attorneys are experienced in obtaining favorable resolutions to a wide variety of contractual disputes. Please contact us for a free consultation today.

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