The common law made provision for a term to describe a situation whereby the parties had not yet agreed to time for completion/delivery of the 'thing' or the Works or the merx. There is thus some form of uncertainty regarding the element of 'time'.
What is meant by "Time is at large"? Traditionally this principle was applied to contracts where the parties entered into a contract agreement with no period of time fixed for completion or delivery of the works. The case of Holme v Guppy (1838) 3 M&W 387 was the first to deal with this concept.
The famous baseline principle rings: "time is of the essence of the contract". However, fixing a time for completion or agreeing to a date of delivery does not necessarily render time essential. A paradox comes into play when these principles are lined up against one another and at some point one has to make way for the other. This can be done by negotiations or waiving previously agreed terms and agree on new terms or agreeing to variable terms. Importantly, time agreed for payment is separate from this concept and bears no relevance to the time of the 'thing' or the Works to be delivered.
If time is said to be at large, the party who needs to deliver upon a specified time will have to deliver or complete the works within a reasonable time. Immediately certain questions arise regarding the tests to be applied. What is reasonable? How long would the reasonable person take to deliver or complete the works? These are a few of many questions that can be raised which alludes to legal uncertainty at the time of entering into the Contract Agreement. The whole purpose of entering into a written Contract Agreement is to create legal certainty. Without knowing by when I would expect someone to deliver or complete the work, I have rendered the main purpose of the written agreement ineffective. There must be legal certainty on the material terms to ensure the relationship between the parties are regulated. It is thus why this principle has become outdated in modern construction law and these defenses do not hold much water in courts, depending on the circumstances.
A contract has to comply with certain requirements or elements. Consensus and delivery or consensus and performance are intertwined. If it lacks parameters for defining the mode and time of delivery, there might be a lack of consensus.
"After all, if I had known that you can take forever to complete the work, I would not have entered into the agreement, because we did not reach consensus on the material terms of the agreement."
It would suffice to say that the common law approach of 'time is at large' can render an agreement unenforceable for the innocent party due to a lack of consensus, if no one has incurred any costs or suffered any damages flowing from performance under the agreement. In practice this phenomenon will not operate in the same way in contracts with variable dates for completion whereby one party can submit a request for an extension of time and the completion date can be amended accordingly, but the request is not being responded to. One critic against this example is the fact that if the original completion date is not amended, it will remain so until amended by agreement between the parties. In this situation one must distinguish between the following circumstances:
- where the Employer/Purchaser increased the amount of work; and
- where the Employer/Purchaser did not increase the amount of work.
Arguably, an increase in the amount of work by the creditor/ Employer/ Purchaser might render performance impossible or impracticable for the other party. The one whose conduct caused the trouble can no longer insist upon strict adherence to the time stated in the Contract [Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601].
Considering the above, one would need to take measures to safeguard legal certainty between the parties and avoid such a situation. For example, one would firstly have to agree to a Programme, Schedule, Timeline or Completion Date or Delivery Date in terms of a written Contract Agreement. By having a time bar clause in a construction contract, the parties will have an increased awareness of their responsibility to notify extensions of time, in time and without delay.
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