Startup v. MacDonald

Startup v. McDonald 

(1843) 6 Mann & G 593

(Section 38—tender)


Startup (S) contracted with McDonald (M) to supply specified quantity of linseed oil within the last fourteen days of the month of March. S tendered on the last of the fourteen days at 9’o clock at night. M refused to accept owing to the lateness of hour.


1) Whether S supplying the goods at such period of time amounted to valid tender?

2) Whether M by denying to take delivery breached the contract?


1) The promisee must have a reasonable opportunity of ascertaining that the thing offered by promisor is thing which latter is bound to deliver. (S.38-2)

Though the time of delivery was unreasonable due to lateness of the usual business hours, yet there was full and sufficient time for M to weigh, examine and receive into their possession the delivered oil before midnight (in dissenting opinion, however, C.J. points out there ought to be reasonable time as well as opportunity. Absence of all workers from the warehouse or any other reason thereof due to the lateness of the hour could be pleaded as factor negating the tender for it will not provide reasonable opportunity to examine the product).

In contracts of sale of goods, if parties don’t stipulate the place and time for the performance of the contract, then according to law, “party who is to receive is bound to attend at a reasonable place, and wait till a reasonable time, for the purpose of receiving what the other party is bound to deliver”. If the party bound to deliver doesn’t come at the reasonable place till the reasonable hour, other party isn’t bound to wait any further and if former comes after latter has departed, he by his own conduct has rendered tender to be made impossible.

Since in present case, M was present at the warehouse and was in a position to reasonably ascertain the quality, quantity of the product delivered, hence, there was a valid tender even when made at unreasonable time for it was made within the time stipulated under the contract and thus rendered literal possibility of performance within the letter of contract.


Author: Vishrut Kansal (National University of Juridical Sciences, Kolkata)

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