Indian contract act, 1872
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OBLIGATIONS OF PARTIES TO CONTRACTS-(SECTION 37) The parties to a contract must either perform, or o er to perform, their respective promises unless such performance is dispensed with or excused under the provisions of the Contract Act or of any other law. Promises bind the representatives of the promisor in case of death of such promisor before performance, unless a contrary intention appears from the contract.
performance may be actu or offer to perform Actual Performance: Where a party to a contract has done what he had undertaken to do or either of the parties have ful lled their obligations under the contract within the time and in the manner prescribed Example: X borrows 5,00,000 from Y with a promise to be paid after 1 month. X repays the amount on the due date. This is actual performance.
Offer to perform or attempted performance or tender of performance: It may happen sometimes, when the performance becomes due, the promisor offers to perform his obligation but the promisee refuses to accept the performance. Example: P promises to deliver certain goods to R. P takes the goods to the appointed place during business hours but R refuses to take the delivery of goods. This is an attempted performance as P the promisor has done what he was required to do under the contract.
BY WHOM A CONTRACT MAY BE PERFORMED The promise under a contract may be performed, as the circumstances may permit, by the promisor himself, or by his agent or his legal representative. 1. Promisor himself: If there is something in the contract to show that it was the intention of the parties that the promise should be performed by the promisor himself, such promise must be performed by the promisor. This means contracts which involve the exercise of personal skill o diligence Example: A promises to paint a picture for B and this must be performed by the promisor himself
2. Agent: Where personal consideration is not the foundation of a contract, the promisor or his representative may employ a competent person to perform it. 3. Legal Representatives: A contract which involves the use of personal skil or is founded on personal consideration comes to an end on the death of the promisor. As regards any other contract the legal representatives of the deceased promisor are bound to perform it unless a contrary intention appears from the contract.
4. Third persons: Effect of accepting performance from third person. When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor. Example: A received certain goods from B promising to pay 100,000/-. Later on, A expressed his inability to make payment. C, who is known to A, pays 60,000/ to B on behalf of A. However, A was not aware of the payment. Now B is intending to sue A for the amount of 100,000/-
when a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor. That is, performance by a stranger, accepted by the promisee, produces the result of discharging the promisor, although the latter has neither authorised nor rati ed the act of the third party. Therefore, in the present instance, B can sue only for the balance amount i.e., 4000/- and not for the whole amount.
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