Actual Performance and Attempted Performance (Tender)

Actual performance discharges the promisor of their obligation completely — once goods are actually delivered and accepted as agreed, that part of the contract is over.

Attempted performance, commonly called tender, occurs when the promisor offers to perform, exactly as agreed, but the promisee refuses to accept the performance. A valid tender has the same legal effect as actual performance in one important respect: it discharges the party making the offer from liability for non-performance, and they need not offer again.

Essentials of a valid tender:

• It must be unconditional — an offer with extra conditions attached is not a valid tender.
• It must be made at the proper time and place — e.g. during business hours, at the place agreed for delivery.
• It must be for the whole quantity contracted for, not a part of it.
• If it is a tender of goods, the promisee must have a reasonable opportunity to inspect the goods before accepting them.
• If it is a tender of money, it must be of the exact/legal amount — in exact legal tender currency, not by a cheque unless the promisee has agreed to accept one.
• It must be made by a person who is in a position to perform (competent), or their duly authorised agent. …