Computing the time for performing an act under a contract may not be as straightforward as it seems—and miscalculating can have dire effects. Learn these rules on counting the days and, better yet, include a provision in the contract on how it’s to be done so that everyone can count on it.
Here are the basic rules for counting days (CC §10):
- The first day is excluded;
- The last day is generally included;
- If the last day is a holiday, it is excluded and the act may be performed on the next day.
What’s a holiday? Generally, they are Sundays and other holidays designated in Govt C §6700. CC §7. Saturdays are optional bank holidays. Part or all of each Saturday is a holiday for public offices. See Govt C §§6702, 6704. But some statutes defining “holidays” are inconsistent. See CCP §§10, 13. Your best bet is to specify which statute defining holidays controls.
Here’s how the counting works:
EXAMPLE 1: A party is required to cure a default within 30 days after receiving notice. Notice is given on June 4. The defaulting party has until July 5 to cure the default.
EXAMPLE 2: A party is required to make payment on the first day of each month. April 1 falls on a Sunday. The party has until Monday, April 2, to make the payment required on April 1.
EXAMPLE 3: A party is required by contract to make a payment on the first day of each month. February 1 falls on a Saturday. The party has until midnight on Saturday, February 1, to make the required payment.
Unless the parties expressly provide otherwise, a court would apply the Civil Code rules for counting days and ascertaining the day of performance. But the Civil Code may not carry out the parties’ intent and it may not be entirely predictable, especially concerning Saturdays. So if you want intended, predictable results, include a day-counting provision in the contract. Here’s a sample:
Counting Days. The number of days specified in any provision of this Agreement shall be counted by excluding the first day and including the last day, unless the last day is a Saturday, a Sunday, or a legal holiday, in which case it shall be excluded. Any act required by this Agreement to be performed by a certain day is timely performed if completed before 5:00 p.m. local time on that date. If the day for performance of any obligation under this Agreement is a Saturday, a Sunday, or a legal holiday, then the time for performance of that obligation is extended to 5:00 p.m. local time on the first day following that is not a Saturday, Sunday, or legal holiday.
[If appropriate, add]
As used in this section, “legal holiday” means the days designated as “holidays” in _ _[e.g., Government Code §§6700–6725]_ _.
Getting general contract provisions right is key to an effective and enforceable agreement. Before you start work on your next agreement, review the general contract provisions (including sample language) in CEB’s Drafting Business Contracts: Principles, Techniques and Forms, chap 17.
Other CEBblog™ posts you may find useful:
- 7 Contract Damages Provisions to Bargain Over
- Don’t Get Tripped Up on Contract Cross-References
- 3 Keys to Structuring a Contract
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