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Performace of Contract

Apr 09, 2018



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  • 8/7/2019 Performace of Contract



  • 8/7/2019 Performace of Contract


    Performance Of Contract Every contract creates a legal obligation which

    continues till the contract has been performed or

    otherwise discharged. Performance of contract is the

    most natural and usual mode of extinction of an


    Performance of a contract consists in doing or causing

    to be done what the promisor has promised to do.

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  • 8/7/2019 Performace of Contract


    Attempted performance or offer to Perform:

    Sometimes it so happens that promisor

    offer to perform his obligation but the promisee does

    not accept. this is known as attempted performance or


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    TENDER Where the promisor has made an offer of

    performance and offer has been promisoris not responsible for non performance.

    Offer of performance is also a performanceknown as tender.

    The motive of party tendering to perform'is to perform it. Thus a valid tender of

    performance is considered to beperformance of a promise and it dischargea party from his obligation under acontract.

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    A enters in to a contract to

    sell his car to B. A offers to deliver toB but B refuses to accept it .it is atender of performance made by a .Byoffering the car, A has completed his

    part of promise.

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    Essentials Of Valid Tender Of

    Performance1. It should be unconditional.

    2. It must be entire not the part only.

    3. It should be made at proper timeand place.

    4. The person making the tender must

    be able and willing to perform it.5. The tender must provide reasonable

    opportunity to the other party.

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    6. It should be made to the properperson.

    7. Tender in case of joint promises: anoffer to perform any one of them isvalid tender.

    8. Tender in terms of money.

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    Effect of Refusal to Tender of

    Performance Sec 38 of the Indian contract

    act,1872,provides that where a

    promisor has made an offer ofperformance to the promisee,and theoffer has not been accepted ,thepromisor is not responsible for non

    performance, nor does he lose hisright under the contract

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    When one party tender theperformance of promise, the other

    party refuse to accept it. The former party is discharged from

    his liability. he is excused fromperformance and become entitled to

    sue the latter to breach the contract.

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    Example:A bought goods from B andpromised to pay Rs. 1000 to B on


    august. A went to b on 10th

    august to give money but B did notaccept it. Here though he may not bedischarged from payment but he

    would not be liable to pay anyinterest there on from 10th augustonwards.

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    PERFORMED1. By the Promisor: contract has to be performed by

    promisor himself and none else when:

    there is something in contract to show that

    personal performance was intended,or By Its very natural it requires personal

    performance by the promisor,like contract to sing ,topaint.

    2. By the Agent: where personal skill and choice isnot involved in contract ,and the promosor opt to

    perform the contract through an agent

    He can made a valid performance by doing so

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    3. Legal representative of promisor:

    where personal skill or choice is not involved in a

    contract,the legal representative of a deceeased promisor arebound to perform the contract entered in to by him.however

    there liability is confined to the extent of the assets obtained

    from deceased.

    4. Third person:when a promisee accepts performance ofpromise from a third person,he cant afterwards enforce it against

    the promisor

    E.g -father pays in place of son

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    Who Can Demand Performance It is only the promisee or his agent who can

    demand performance of the promise undera contract. it is immaterial whether thepromise is for the benefit of some otherperson. In case of death of thepromisee,his legal representatives candemand performance. In some cases athird person who is not party to thecontract can also demand performance

    Example-A promise to B to sell his house toC.A doesnt perform the contract .C cantsue A. it is only B who can enforce promiseagainst A

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  • 8/7/2019 Performace of Contract


  • 8/7/2019 Performace of Contract


    3. Where time is specified and application has to be


    Sometimes the day of the performance is specified inthe contract and the promisor has to perform it only on

    the being asked by the such cases,the

    promisee must make a demand for the performance to

    the promisor at proper time and place, and with in usual

    hours of business.

    Proper time and place is question of fact.

    A promised to deliver 100 kg of oil on a fixed date. B

    agreed to specify later on place and time for delvery ofoil. In this case it is duty of B to inform A about the

    time and place of delivery.

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    4. Where no place is specified and no

    application is to be made:When no place is

    fixed for the performance and the promisorhimself has to perform the contract without

    being asked to do so,he must first apply to the

    promisee to appoint a reasonable place for the

    performance. Thereafter he should perform at

    the place so appointed.

    e.g A agreed to suppply 100bags of rice to B on

    certain day but no palce was fixed this case,A must ask B foe the place

    of delivery,and supply the rice at the place so


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    5. Where manner and time of performance is prescribed by the the this case the performance of any promise is made in

    any manner,or at any time which the promisee prescribes or


    E.g A owned B Rs.500.b desired A to send him a cheque for rupees

    5000 by Post.Accordingly A drew a cheque in favour of B and

    posted the same to his address.In this case the debt is discharged

    as soon as envelope containing the Cheque is posted by A.

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    Joint Promises

    Where more than one person constitute a single partyto the promise under the contract is considered as ajoint promise. It may take any of the following forms:

    Several Joint promisor make a promise with a single

    promise e.g. A,B,C Jointly promise to pay rs.9000 toD A single promisor make a promise with several joint

    promisees e.g A promises to pay Rs. 9000 to B and Cjointly.

    Several Joint Promisors make a promise with several

    joint promisees e.g A,B and C jointly promise to payRs 9000 to D and E

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    Rights and Liabilities Amongst Joint

    Promisors Joint promisors are liable to

    contribute equally.

    Joint promisors are liable to sharelosses equally.

    The Contribution rule doesnt apply toprincipal debtor and surety.

    Effect of release of of one of the jointpromisor by the promisee.

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    Performance of Reciprocal PromisesPromises which form the

    Consideration or part of the

    consideration for each other arecalled reciprocal promises

    When a party gives a promise inconsideration of others party

    promise,Both the promises are calledreciprocal promises.

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  • 8/7/2019 Performace of Contract


    Rules Regarding Performance Of Reciprocal Promises

    Performance of mutual and concurrent promises:

    when a contract consist of reciprocal promises to

    be simultaneously performed,no promisor need to

    perform his promise.Unless the promisee is ready

    and willing to perform his promise.

    Thus a promisor is not bound to perform

    unless unless the promisee is willingand ready to perform.

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    Performance of conditional anddependent promises:whwn a party

    who has to perform first fails toperform his part of promise ,not onlythe other party is dischrged fromobligation of his respective

    performance,he is also entitled toclaim damages for such nonperformance.

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  • 8/7/2019 Performace of Contract