A party cannot use its own breach or default in satisfying a condition precedent as a basis for being relieved of its contractual obligations

Today's decision in Southcott Estates Inc. v. Toronto Catholic School Board, 2010 ONCA 310 has a useful aside:


[13]         It is a well-established principle of contract law that a party cannot use its own breach or default in satisfying a condition precedent as a basis for being relieved of its contractual obligations, while a party in breach of its obligation to do what is required to complete a transaction cannot terminate the agreement by relying on a time of the essence clause: see e.g. Paul M. Perell & Bruce H. Engell, Remedies and the Sale of Land, 2d ed. (Toronto: Butterworths, 1998) at 44-5; St. Thomas Subdividers Ltd. v. 639373 Ontario Ltd. (1996), 91 O.A.C. 193 (C.A.), at paras. 36-7; Shapiro (c.o.b. ISR Ent. in Trust) v. 1086891 Ontario Inc. (2006), 39 R.P.R. (4th) 246 (Ont. S.C.), at para. 107; McCallum v. Zivojinovic (1977), 16 O.R. (2d) 721 (C.A.), at p. 726, quoting New Zealand Shipping Co. v. Société des Ateliers et Chantiers de France, [1919] A.C. 1 (H.L.), at p. 6, for the following proposition: "It is a principle of law that no one can in such a case take advantage of the existence of a state of things which he himself produced."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

www.jmortonmusings.blogspot.com