ident does not constitute an objective impediment to performing the contract (destruction of the subject matter of the contract cannot be used as an excuse in this case), as the winery most certainly had in stock enough bottles of wine to deliver them later that day to Elin. This is a certain fact, as the bottles were delivered in the afternoon of May 2. Moreover, immediately after the accident, the company should have called Elin and ask her if she would agree to a delivery of the bottles later that day or maybe on May 2. This would have solved the problem and avoid the unpleasant situation.
Therefore, the Court should discharge the contract due to its material alteration and failure to substantially perform on behalf of the plaintiff (Grapes & Vines Winery). In this case, Elin’s contractual obligations would be also discharged and her not accepting the plaintiff’s tender later than the due date should not be considered as breach of contract.
2. I believe that in this case, time is not of the essence of the contract. Owen does still substantially perform its contractual duty, making the payments in the beginning of each month, which affords Quality substantially the same benefits as those promised.
Quality would have been entitled to sue immediately for breach the first month that late payment was performed. However, accepting late payments during five months means that the company has silently agreed to it and accepts them. If Quality has decided that it does not want to further accept late payments, it should have warned Owen about it and if Owen continued to make the late payments, sue