Sunteți pe pagina 1din 20

V Performance of contract means fulfilling of

their respective legal obligations created

under the contract by both the promisor
and promisee.

V When the contract is duly performed by

both the parties, the contract comes to a
happy ending and nothing more remains.
V y Promisor ----
V y Promisor or Agent ----
V y Legal Representatives ----
V Performance by Third Person ----
R oint promises may take any of the
following shapes
± Where several joint promisors make a promise
with a single promisee.
R A,  and C jointly promise to pay Rs 3000 to D.
± where a single promisor makes a promise with
several promisees.
R P promises to pay Rs. 3000 to Q and R jointly.
± Where several joint promisors make a promise
with several joint promisees.
R A,  and C jointly promise to pay Rs. 3000 to P, Q and
R jointly.
R When a promise is made to several persons jointly, then, unless
a contrary intention appears from the contract, the right to claim
performance rests with all the promisees jointly and single
promisee can not demand performance.
R When any of the promisees dies, the right to claim performance
rests with legal representatives of such deceased person jointly
with surviving promisees.
R When all the promisees are dead, the right to claim
performance rests with legal representatives of all jointly. ----
R t is worth mentioning here that under the terms of the section if
the promisor makes payment to one of the several joint
promisees, he does not operate as complete discharge of the
R All promisors must jointly fulfill the promise
(sec 42):
± When two or more persons have made a joint promise
(e.g. signed a promissory note jointly), then all such
persons must jointly fulfill the promise.
± When any one of the joint promisors dies, his legal
representatives must, jointly with the surviving
promisors, fulfill the promise.
± On the death of all the original promisors, the legal
representatives of all of them jointly must fulfill the
R Any one or more of joint promisors may be
compelled to perform:(Sec 43 Para1)

± With two or more persons make a joint promise,

the promisee is entitled, to compel any one or
more of such joint promisors, to perform whole of
± n other words, according to the section the
liability of the joint promisors is µjoint and several¶
as against promisee.
R A,  and C jointly promise to pay D Rs. 3000. D may
compel either A or  or C or all or any two of them to
pay Rs. 3000.
R Right of contribution inter-se between joint
promisors (Sec 43 Para 2):
± f one of the several joint promisors is made to perform the
whole contract, he may require equal contribution from other
joint promisors.
R n the above example if A is compelled to pay the entire amount
of Rs. 3000, he can realize from  and C Rs. 1000 each.

R Sharing of loss by default in contribution (Sec 43

Para 3):
± f any of the joint promisors make a default in making
contribution, if any, the remaining joint promisors must bear
the loss arising from such default in equal shares.
R n the above example if A is compelled to pay the entire amount
and C is unable to pay anything, A is entitled to receive Rs. 1500
from .
R f Cs estate is able to pay one half of his share, A is entitled to
receive Rs. 500 from Cs estate and Rs. 1250 from .
V Vffect of release of one joint promisor (Sec

R n case of joint promise if one of the joint promisors

is released from his liability by the promisee, his
liability to promisee ceases but this does not
discharge the other joint promisors from their
liability, neither does it free the joint promisor so
released from his liability to contribute to other joint
R Assignment means transfer of contractual rights and liabilities
to a third party with or without the concurrence of the other
party to the contract.
R ollowing are the important points as regards to assignment of
± Contracts involving personal skills cannot be assigned.
± The obligations (i.e. liabilities) under a contract can not be assigned
except with the concent of the promisee, and when such concent is given
it is really a µnovation¶ resulting in substitution of liabilities.
± The rights and benefits under the contract are assignable unless the
contract is of personal nature. This is so because it makes no difference
to the party bound by that obligation, whether he is called upon to
perform in favor of the original party or the assignee. ut assignee takes
the assignment subject to all equities, if any.
± Assignment by operation of law takes place in case of death. Upon the
death of a party, his rights and liabilities under a contract devolve upon
heirs and legal representatives (except in case of contract involving
personal qualifications.)
V Promises which form the consideration for
each other are called µreciprocal¶ or µmutual
R A promises to sell certain goods to  and  in
return promises to pay the price thereof to A .
There is an obligation on each party to perform his
own promise and to accept performance of other
R utual & ndependent (Sec 52):
± Where each party must perform his promise
independently without waiting for the performance or
willingness to perform of other.

R utual & Dependent (Sec 54):

± Where the performance of the promise by one party
demands on the prior performance of the promise by
the other party.
± urther if the first who needs to perform fails to fulfill
his promise he cannot claim the performance of the
reciprocal promise and must make compensation to
the other party to the contract for any loss which such
other party may sustain by non performance of the
V utual & Concurrent (Sec 51):

R Where the two promises are to be performed

simultaneously .
R n case of such promises the promisor need not
perform his promise unless the promisee is ready
and willing to perform his reciprocal promise.
V    
R Where the time and place are prescribed by the promisee,
the performance of the contract must be at the specified
time and place.

V   
R With in reasonable time:
v On a working day and within usual hours of business.(Sec
R At a proper place:
v At godown or shop, and not at a public meeting or a fair.
v Generally speaking the promisor must ask the promisee
where he would like the contract to be performed, and to
perform it at such place. (Sec 49)
V Where time is essence of contract and there is
failure to perform within fixed time, the contract (or
so much of it as remains unperformed) becomes
voidable at the option of the promisee. He may
rescind the contract and sue for breach.

V Where time is not the essence of contract, failure

to perform within a specified time does not make
the contract voidable. t means that in such a case
the promisee cannot rescind the contract and he
will have to accept the delayed contract. ut, he will
be entitled to claim compensation from he promisor
for any loss caused to him by delay.
R This rule is however subject to condition that the
promisor should not delay the performance
beyond the reasonable time, otherwise the
contract will become voidable at the option of

V n case of contract voidable on account of the

promisors failure to perform his promise with in the
agreed time or within the reasonable time, as the
case may be, if the promisee instead of rescinding
the contract, accepts the delayed performance, he
cannot afterwards claim compensation for any loss
caused by the delay, unless at the time of accepting
the delayed performance, he gives notice to the
promisor of his intention to do so.
V When the debtor who owes several debts to the same
creditor, makes a payment, which is insufficient to satisfy
the whole indebtedness, the question arises as to which
of the debts the payment is to be applied.
V Section 59-61 answer this question and lay down
following rules:

R Debtor¶s express intention must be followed.

R Debtor¶s implied intention must be followed.
R Appropriation by creditor
R Appropriation by law
R When principal and interest both due
V The circumstances in which contracts need not be
performed are as follows:
R f parties to the contract agree to Novation,
Rescission or Alteration, the contract needs not be
performed(sec62). n such cases the original the
original contract disappears and is substituted by
a new contract.
R f the parties to the contract agree to dispense
with or remit performance of promise either wholly
or in part, the original contract stands discharged
(sec 63). This is technically called Remission.
R When at whose option the contract is voidable
rescinds it, the other party there to need perform
his promise. (sec 64).

R f any promisee neglects or refuses to afford the

promisor reasonable facilities for the performance
of his promise, the promisor is excused for the
non performance of contract (Sec 67).
V Sometimes it so happens that the promisor offers to
perform his obligation under the contract at the proper
time and place but the promisee does not accept the
performance. This is known as Attempted Performance.
V Section 38 sums up in this regard as ³Where the
promisor has made an offer of performance to promisee,
and the offer has not been accepted, the promisor is not
responsible for non-performance, nor does he lose his
right under the contract.
V Thus a tender of performance is equivalent to actual
performance. t excuses the promisor from further
performance and entitles him to sue the promisee for the
breach of contract.