Performance of Contract

Performance of a contract
• It means the carrying out of the
respective obligations undertaken by each
of the two parties, who have entered into
an agreement to fulfill such obligations.
 Who can perform a contract?
• Promiser himself
• His agent
• Or legal representatives
 When promiser to perform?
• Nature of the contract
• Intention of parties
– It should be performed by the promiser
himself
• It involves the exercise of personal skill and
qualifications of the promiser
• Death- heirs not liable
 Agent?
– Personal skill not necessary
– Can be done by anyone
• Legal Representatives
– Dies before performance of the contract
– Son/daughter who inherit the property of the
deceased are bound to perform.
 Performance of Joint promises
• Joint promise is 2 or more individuals
bound to perform a contract together
• All the promisers’ die- legal
representatives of all of them bound jointly
 Rules for performance of joint
promises
• Liability is joint and several- each one
bound to discharge the entire liability
– Person paying the entire amount can proceed
against and recover amount paid more than
his share.
• One promisor dies= LR’s + surviving joint
promisors
• Release of one – consent of all others.
 Performance of reciprocal
promises
Promises which form consideration for each
other is called reciprocal promises
Eg- A promises to do or not to do something
in consideration of B’s promise to do or not
to do something is called reciprocal
promises.
 Classification of reciprocal
promises

1. Mutual and dependent

2. Mutual and Independent
3. Mutual and concurrent
Rules- performance – reciprocal p’s
1. Simultaneous performance-no performance
unless promisee is ready and willing to
perform.
2. Order of performance expressly fixed- in that
order
1. Not expressly fixed, performed in the order the
nature of transaction requires.
3. One party preventing other from performing-
voidable at the option of the prevented-entitled
to compensation for any loss.
4. Reciprocal promise is such that one cannot be
claimed till the other has failed to perform-
promisor should make compensation to other.
 Tender/ attempted Performance.

• Person bound to perform

• Ready to perform
• Offer to perform his promise
• At proper time & place
• Other party refuse to accept performance
• Tender equivalent to actual
performance.
 Section 38
Where a promisor has made an offer of
performance to the promisee and the other
has not accepted, the promisor is not
responsible for non performance nor does
he thereby loose his right under the
contract.
 Essentials of tender
• Unconditional
• Proper quantity or of the whole debt
• Made at the proper time and place
• In proper form
• Made by person who is in position and is
willing to perform
• To the proper person- promisee/
authorized agent
• Relates to delivery of goods- promisee
sufficient opportunity to inspect the goods.
 Performance of contract
1.A, B and C jointly promise to pay D Rs.3,000/-
. A and B are untraceable. Can D compel C
to pay him in full?
2. A,B & C jointly promise to pay D a sum of
Rs.6000.
a) Can D compell any of the three parties to
pay him Rs.6000/-
b) C is compelled to pay the whole amount to
D. Can he recover anything from A and B
when (i) both A and B were solvent(ii) A
(and not B) is insolvent and pays 50 paise
in a rupee to his creditors, (iii) A is not in a
position to pay anything.
1. A owes B two sums, one for Rs.1000
which is barred by limitation and another
for Rs.1,500 which is not barred. A pays
B Rs.500 on account generally. Later B
sues for Rs.1500. A pleads (I) as to
Rs.1000 that it was time barred and (ii)
as to Rs.1,500 a part payment of Rs.500.
Examine these contentions
2. A promises to sell and deliver on the 5th of
January a lorry to B. The parties have stipulated
that time should be the essence of the contract.
A delivers the lorry only on the 5th of February.
Explain what are the rights of B against A in this
case. Suppose B desires to accept the belated
delivery and also to claim compensation for loss
occasioned by the non- performance of the
promise at the time agreed. Advice B as to
whether he can achieve these two objectives.
3. A, a singer, enters into a contract with B, the
manager of a theatre, to sing in his theatre two
nights in every week during the next two months
and B agrees to pay her at the rate of Rs.100
for each night. On the sixth night A willfully
absents herself. With the assent of B, A signs on
the seventh night. But on the following night B
puts an end to the contract. Can A claim
damages for breach of contract? Advice A