Sec 995

To a party who declares he will not be bound by a contract, it is not necessary that a tender should be made.3 The general principle is that a party cannot defend himself on the ground of the non-performance on the other side of conditions whose performance he had already notified the other party would have been nugatory. If he declares himself not bound by the contract, or has incapacitated himself for its performance, he cannot set up failure in either demand or tender.4 "Where the vendor, before the time for the performance of his contract of sale, has disabled himself from performing his contract, neither a demand for performance, nor a tender of the consideration money, nor an averment of the plaintiff's readiness to accept the goods and pay for them, is necessary."5 "A party can only be obliged to make a tender when by making it he could obtain possession of the goods."6

Tender may be waived.

1 Harris V. Packwood, 3 Taunt. 264. See supra, sec 582, 601 et seq.

2 Walter V. Smith, 5 B. & Ald. 439; Parks V. Hall, 2 Pick. 206.

3 Gerrish V. Norris, 9 Cush. 167; Carpenter V. Holcomb, 105 Mass. 280; Curtis V. Aspinwall, 114 Mass. 187; Galvin V. Collins, 128 Mass. 527; supra, sec 575 et seq., 603.

4 Supra, sec 312, 325, 603, 716, 747, 901.

5 Depue, J., Parker V. Pettit, 43 N. J. L. 517; citing Bowdell V. Parsons, 10 East, 359; Lovelock V. Franklyn, 8 Q. B. 371.

6 Lyndhurst, C. B., Jones V. Cliff, 1 C. & M. 541; and see cases supra, sec 604-6.