/per-FOR-muhns or TEN-der of per-FOR-muhns/·phrase
Also known as:performance · tender of performance · tender performance · tender
Written by attorneys · grounded in primary & secondary sources — see below
An act by which a party fulfills its legal obligations or offers to do so in a manner that satisfies the applicable duties. Tender of performance occurs when a party is ready, willing, and able to perform and communicates that readiness to the other party. Either form discharges the performing party's duty and may trigger reciprocal obligations or remedies for the counterparty.
Sources & Authorities
How it applies
Common Examples
6
Mortgage Payment Tender
Pierre Poulin borrowed funds from Patriot Insurance secured by his home under a deed of trust. When the loan matured, Poulin delivered the full payoff amount to the trustee along with a demand for reconveyance of title. The tender satisfied the secured obligation and entitled Poulin to clear title even though the lender initially resisted acceptance.
Judicial Duty Compliance
Judge Phuong Pham presided over a trial involving litigants of differing national origins. Before issuing rulings, Pham reviewed all filings and evidence with equal care and issued a written decision free of any reference to the parties' backgrounds. The performance of these judicial duties without bias fulfilled the conduct requirements applicable to the bench.
Select any source to read its text and confirm it supports the definition.
Cases
Statutes
Federal Rules
Uniform Acts
Model Codes
Common Law
Restatements
Agent Knowledge Standard
Precision Tools hired Paul Peterson as its purchasing agent. Peterson inspected supplier invoices and market data with ordinary care before placing orders. His diligent review constituted performance of the duty owed to the principal and prevented any claim that the company lacked notice of material pricing facts.
Third-Party Beneficiary Payment
Premier Manufacturing contracted with Phoenix Technologies to supply parts that would benefit a downstream customer. When the parts arrived on schedule and met specifications, Phoenix tendered payment directly to the customer as the contract required. The tender discharged Premier's duty and allowed the customer to accept the benefit without further action by the promisee.
Landlord Repair Obligation
Patricia Patel leased an office building to Pamela Phillips under a lease requiring Patel to maintain the HVAC system. After a tenant complaint, Patel promptly hired a licensed contractor who restored full function within forty-eight hours. The completed repair constituted performance of the contractual duty and eliminated any basis for tenant claims arising from the prior disrepair.
Contract Interference Prevention
Priya Prasad held a supply contract with a manufacturer. When a competitor attempted to lure the manufacturer away, Prasad immediately increased its orders and prepaid for the next quarter's deliveries. The prompt and full performance of the existing contract prevented any nonperformance and defeated the competitor's inducement efforts.
Common questions
Frequently Asked
3
What constitutes a valid tender of performance?+
A valid tender requires the party to be ready, willing, and able to perform exactly as the contract demands and to communicate that readiness to the other party. The tender must occur at the proper time and place. If accepted, it discharges the tendering party's duty.
How does performance differ from tender of performance?+
Performance is the actual completion of the contractual obligation. Tender is an offer to perform that is refused or not yet due. Both can discharge the duty, but tender alone suffices when the other party prevents actual performance.
Does substantial performance count as full performance?+
Substantial performance satisfies the duty when the party has completed the essential terms and any deviations are minor. The other party must still pay, subject to damages for the minor shortfall. Full and exact performance is not always required to discharge the obligation.
557 P.2d 106 (Cal. 1976)Property
…other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason. But they may agree to pool their earnings and to hold all property…