TENDER - A tender is an offer to do or
perform an act which the party offering, is bound to perform
to the party to whom the offer is made.
A tender may be of money or of specific articles; these
will be separately considered.
Of the lender of money. To make a valid tender the
following requisites are necessary: 1. It must be made
by a person capable of paying: for if it be made by
a stranger without the consent of the debtor, it will
be insufficient.
It must be made to the creditor having capacity to
receive it, or to his authorized agent.
The whole sum due must be offered, in the lawful coin
of the United States, or foreign coin made current by
law and the offer must be unqualified by any circumstance
whatever. But a tender in bank notes, if not objected
to on that account, will be good. But in such case,
the amount tendered must be what is due exactly, for
a tender of a five dollar note, demanding change, would
not be a good tender of four dollars. And a tender was
held good when made by a check contained in a letter,
requesting a receipt in return which the plaintiff sent
back demanding a larger sum, without objecting to the
nature of the tender. When stock is to be tendered,
everything must be done by the debtor to enable him
to transfer it, but it is not absolutely requisite that
it should be transferred.
If a term had been stipulated in favor of a creditor,
it must be expired; the offer should be made at the
time agreed upon for the performance of the contract
if made afterwards, it only goes in mitigation of damages,
provided it be made before suit brought. The tender
ought to be made before day-light is entirely gone.
The condition on which the debt was contracted must
be fulfilled.
The tender must be made at the place agreed upon for
the payment, or, if there be no place appointed for
that purpose, then to the creditor or his authorized
agent.
When a tender has been properly made, it is a complete
defence to the action but the benefit of a tender is
lost, if the creditor afterwards demand the thing due
from the debtor, and the latter refuse to pay it
Of the tender of specific articles. It is a rule that
specific articles maybe tendered at some particular
place, and not, like money, to the person of the creditor
wherever found. When no place is expressly mentioned
in the contract, the place of delivery is to be ascertained
by the intent of the parties, to be collected from the
nature of the case and its circumstances. If, for example,
the contract is for delivery of goods from the seller
to the buyer on demand, the former being the manufacturer
of the goods or a dealer in them, no place being particularly
named, the manufactory or store of the seller will be
considered as the place intended, and a tender there
will be sufficient. When the specific articles are at
another place at the time of sale, that will be the
place of delivery.
When the goods are cumbrous, and the place of delivery
is not designated, nor to be inferred from the circumstances,
it is presumed that it was intended that they should
be delivered at any place which the creditor might reasonably
appoint; if the creditor refuses, or names an unreasonable
place, the debtor may select a proper place, and having
given notice to the creditor, deliver the goods there.
