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5.14.1 Importance

References to date and time are very important in legal documents.

Apart from the need to date a document when it is executed in order to indicate the date from which it is effective (although note

that a different date may be referred to in the document for some or all of its provisions becoming effective), date and time may play a crucial part in indicating when rights, powers or privileges and obligations or duties commence or end and their duration. Some examples where date and time are important include:

• leases – to indicate the date when the lease commences or expires or its duration;

• contracts of employment – to indicate the contractual period of employment, its commencement and expiry or the period of notice to be given to terminate the contract;

• contracts for the sale of land – to indicate the date of completion;

• trusts – to indicate the date, time or age at which a beneficiary will be entitled to property;

• insurance proposals and policies – to indicate cancellation periods and the period of cover and its commencement and expiry;

• contracts – to indicate when a party must perform under the contract;

• pension plans – to indicate the date on which pensions or other benefits will be payable.

Normally, references to date and time should be expressed with precision, so that there can be no doubt when rights, powers or privileges and obligations or duties begin and end. For example, the date when a lease commences and expires should not be open to doubt. However, exceptions do arise where references to date and time are deliberately left vague (see above, 5.3). For example, parties may not have been able to agree on the date or time for the completion of a contract for the sale of a house and reached a compromise that completion should be within a ‘reasonable time’

after signature of the contract. Similarly, a contract for services may provide that either party may terminate it upon giving ‘reasonable notice’ to the other party, because a party with a strong bargaining

position has insisted on this. Subject to these exceptions, where circumstances dictate that something less than precision is called for, dates and times must be precise.

5.14.2 General rules

Year

The general rule is that a year is a period of 12 calendar months calculated either from 1 January or some other named day and comprising 365 days in an ordinary year and 366 days in a leap year (see IRC v Hobhouse [1956] 1 WLR 1393). Thus, in drafting a reference to a period of years, the day on which the period commences or ends, or both, should be stated. For example:

One year beginning on 1 July 2001.

Or:

One year ending on 30 June 2002.

Or:

One year beginning on 1 July 2001 and ending on 30 June 2002.

In company pension schemes, reference to ‘years’ will be especially important if pension benefits are computed on the basis of salary at retirement and years of service. In this instance, the documents will need to define ‘years’ of service in detail.

Month

Section 61 of the Law of Property Act 1925 lays down a statutory presumption that, in all deeds, contracts, wills and other instruments coming into force after 1 January 1926, ‘month’ means calendar month unless the context otherwise requires. Pre-1925 case law states that ‘calendar month’ means a complete month in the calendar. It also states that a calendar month can be computed from any day in a month to end on the day having the same number in the next month (see Migoti v Colville (1879) 4 CPD 233).

Where it is necessary to refer to a period of months, for example,

‘six months’ notice’ in a lease or ‘three months’ notice’ in a contract

of employment, it is advisable to indicate the date on which the notice commences and ends in order to avoid any ambiguity. Thus, for example, a lease may refer to:

Six months’ notice commencing on 1 July and ending on 31 December.

Alternatively, the period of notice might be given in days rather than months.

Day

A day is the minimum period of time in law and no account is taken of a fraction of a day. The operation of this rule is well illustrated by Cartwright v MacCormack [1963] 1 WLR 18, in which an insurance company issued a temporary cover note for motor insurance for

‘fifteen days from the commencement of the date of risk’. The note was issued at 11.45 am on 2 December 1959. The insured had an accident at 5.45 pm on 17 December 1959. The insurer argued the policy ran from 11.45 am on 2 December 1959 to 11.45 am on 17 December 1959. This was rejected, since 11.45 only referred to the time the insurance became effective and the 15 days began at midnight on 2 December and, therefore, ended at midnight on 17 December.

5.14.3 Use of expressions ‘before’ and ‘after’

As the examples above illustrate, sometimes times and dates are expressed in legal documents in a way which may lead to difficulties. As a general rule, the use of ‘after’ and ‘before’ to express dates will avoid ambiguity. For example:

Employees born after 1 January 1980.

Employees born before 1 January 1980.

Sometimes, dates and times are expressed carelessly and do not meet the intentions behind a provision. For example:

Employees born on 1 January 1980.

Strictly construed, this clause would only apply to employees born on 1 January 1980 – which would be unduly narrow – or employees who were born on or before that date. The words do not express the intention clearly if the intention was to refer to employees born on or before that date.

If ‘after’ and ‘before’ are used in the same document, care should be taken to ensure that they do not result in an accidental omission or in overlap. For example, definitions may state:

‘Class A Members’ means members admitted before 31 December 2000.

‘Class B Members’ means members admitted after 1 January 2001.

These definitions do not include members who were admitted on or after 31 December 2000 and on or before 1 January 2001. Clearly, there has been an omission. Overlap can also arise in the use of

‘after’ and ‘before’. For example:

On or after 1 December 2000.

On or before 1 December 2000.

This can occur where, for example, the rights of employees are set out in different parts of the same document by reference to when they became employees. If ‘on’ is used in each clause, persons who became employees on 1 December 2000 will fall into both classes.

5.14.4 Other expressions used in stipulating date and time The following expressions should be used with care in expressing date and time:

• ‘by’

A notice to quit ‘by 1 January’ will give the tenant the right to remain in the property until midnight on 1 January. This statement of the date would be incorrect if the landlord had intended that the tenant should be out on 31 December.

• ‘from’

Where a notice is given ‘from’ a specified date, that day will not be included in the computation. For example, a rent increase effective ‘from 25 March’ will only take effect on 26 March.

• ‘on’

If a period of time is expressed to begin on a stated day, that day is included. For example, a tenancy which is to commence ‘on 15 July’ will begin on that day.

• ‘till’ and ‘until’

The cases show that both ‘till’ and ‘until’ may be construed by the courts as either inclusive or exclusive. Consequently, they should not be used to express times and dates. For example, if an insurance policy is stated to be effective ‘until 1 September’, ‘until’ may mean that it expires at midnight on 31 August or that 1 September is included so that it expires at midnight on 1 September.

• ‘between’

If time is expressed as ‘between’ two dates, the dates mentioned will not be included. For example, ‘between 1 January 2000 and 30 June 2003 does not include 1 January 2000 or 30 June 2003. ‘Between’ is sometimes used to refer to age, and in this respect it may lead to unexpected results.

For example, a clause in a trust referring to the settlor’s children ‘between the ages of 18 and 21 years’ would not include children aged exactly 18 or exactly 21 and may, in fact, only include children aged 19 and 20. The uncertainty could be resolved by drafting the provision as ‘aged not less than 18 years or more than 21 years’.