Condition and warranty in English law

The idea of a condition as basis andjustification for a right of rescission has not been confined to continental jurisprudence; in England it has been described as the "key to the modern theory of breach of contract".^{[4133] [4134] We have seen that traditionally the claim for damages for breach of contract is the central contractual remedy according to the English common law.14y Every contractual term, express or implied, is in law a "warranty", and breach of a warranty entitles the innocent party to claim damages.}

The term "condition" has been defined as

"la] stipulation [which] goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract... a thing different in substance from what lhad been] stipulated for";^lsl

failure of performance must have "substantially" deprived the other party of what he had bargained for. Today the formal categories of warranty and condition have largely been abandoned in favour of the distinction between the essential and non-essential terms of a contract.^{[4136] [4137] This means, in the case of mora debitoris, that the creditor may, of course, claim damages in any event; in addition, he is entitled to rescind the contract, if the time within which performance must be made is "essential" to the contract. The right of rescission thus requires, in the phraseology of English law, that "time is of the essence of the contract".[4138] Whether the parties intended time to be of the essence, is determined by the judge according to the individual circumstances of each case; the fact that a specific time for performance has been expressly fixed in the contract is no longer[4139] regarded as conclusive.[4140] 5 If time does not appear to be "of the essence", the creditor is still able to elevate it to that status by giving the debtor a notice of rescission and allowing him a further reasonable time for performance.}

4.