PERFORMANCE OF CONTRACTS
Chapter – 10
Farhana Noor
PERFORMANCE OR
TENDER DEFINITION :
A contract creates legal obligations. Performance of a contract
means the carrying out of these obligations. Each party must
perform or offer to perform the promise which he has made.
THE OFFER TO PERFORM OR TENDER :
The offer to perform the contract is called Tender. A tender, to be legally valid, must fulfill the following conditions –
1. It must be unconditional. A tender coupled with a condition is no tender.
Example – A passenger on a bus offers a rupee note for the fare which is 10paisa only. It is not a valid tender because it imposes condition on the
acceptance of the tender viz the return of the balance out of the rupee. A tender of money must be of the exact sum due.
2. A tender to pay conditionally upon the other party doing somethings such as giving a release or accepting the other amount in full
satisfaction of all demand, is not a valid tender.
3. A tender money, must be in legal tender money, not by any foreign money, or by promissory note or cheque.
4. The tender must be made at a proper time and proper place
5. The person to whom a tender is made must be given reasonable opportunity of ascertaining that the person by whom it is made is able and willing there than, to do the whole of what he is bound by his promise to do.
6. The reason behind the above rule is that an offer to perfume a part of the promise is not a valid tender.
7. If the offer is an offer to deliver anything to the promise, the promise must have a reasonable opportunity of seeing that the thing offered is the thing which the
promisor is bound by his promise to deliver.
Example – P contracts to deliver to B at his warehouse on the 1st March 1973, 100 bales of cotton of a particular quality. P must bring the cotton to B’s warehouse, on the appointed day, under such circumstances that B may have a reasonable opportunity of satisfying himself that the thing offered is cotton of the quality contracted for and that there are 100 bales.
BY WHOM IS A CONTRACT TO BE PERFORMED
1. Personal performance
In cases involving personal skill, taste or credit, the promisor must himself perform the contract. The courts will force the intention of the parties as expressed in the contract, or as may be inferred from the circumstance of the case.
2. Performance by representatives
In all other cases the promisor or his representatives may employ a competent person to perform it – Example – Q promises to paint a picture for B; Q must perform this promise personally.
3. Effect of performance from a 3rd person –
When a promise accepts performance of the promise from a third person, he cannot afterward enforce it against the promisor
4. Death of the promisor –
Contract involving personal skill or volition, come to an end when the promisor dies. His heirs or legal representatives are not bound to perform such contracts.
A personal cause of action dies with the person concerned.
Example - P promises to deliver goods to B on a certain day on payment of rs 1000. P dies before that day. P’s representatives are bound to deliver that goods to B, and B is bound to pay rs 1000 to P’s representatives.
5. Performance of joint promises
Two or more persons may enter into a joint agreement with one or more persons.
WHO CAN DEMAND PERFORMANCE ?
1. The promisee can demand performance of the promise. A stranger
to contract i.e one who is not a party to it, cannot file a suit to
enforce it. A contract between P and Q cannot be enforced by R.
2. Under certain cases a stranger to the contract can enforced the
contract. Example – trust, assignee
3. The legal representatives can enforce performance of the contract
upon the other party or parties and their legal representatives.
DEVOLUTION OF JOINT
RIGHTS AND LIABILITIES
Two or more persons may enter into a joint agreement with one or more persons.
1. Devolution of joint liabilities
When two or more persons have made a joint promise, than, unless a country intension appears, all such persons must jointly fulfill the promise. Upon the death of the joint
promisors, his liabilities devolves upon his legal representatives and the legal representatives become liable to perform the contract jointly with the surviving parties. If all parties die, the liability devolves upon their legal representatives jointly.
2. Any one of the joint promisor may be compelled to perform
When two or more persons make a joint promise, the promisee may in the absence of express agreement to the contrary compel any one or more of such joint promisors to perform the
whole of the promise.
3. Effect of release of one joint promisor
Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee not discharge the other joint promisors; neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.
4. Devolution of joint rights
When a person has made a promise to several persons jointly, then the right to claim performance rests on all the promisees jointly so long as all of them are alive. When one of the promisees dies the right to claim performance rests with his legal representative jointly with the surviving promisees.
Example – Q in consideration of RS 500 lent to him by B & C, promises B & C jointly to repay the sum with interest on a day specified. B dies. The right to
claim performance rests with B’s representatives jointly with C during C’s life and after the death of C with the representatives of B and C jointly.
RECIPROCAL PROMISES
Definition: A contract consists of reciprocal promises when one party makes a promise in
consideration of similar promise made by the other party. Such a contract is an exchange of promises.
Rules :
1. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.
Example – A & B contract that A shell delivers goods to B to be paid for by B on delivery. A need not deliver the goods, unless B is ready and willing to pay for the goods on delivery. B need not to pay for the goods unless A is ready and willing to deliver them on payment.
2. Order of performance of reciprocal promises
Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
Example – A & B contract that A shall build a house for B at a fixed price. A’s promise to build the house must be performed before B’s promise to pay for it.
3. Liability of party preventing event on which contract is to take effect When a contract reciprocal promises and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented and he is entitled to compensation from the other
party for any loss which he may sustain in consequence of the non-performance of the contract.
Example – A & B contract that B shell execute certain work for A for 1000 rs.
B is ready and willing to execute the work accordingly but A prevents him from doing so. The contract is voidable at the options of A; if he elects to rescind it, he is entitled to recover from A compensation for any loss which he has incurred by its non-performance.
4. Effect of default as to that promise which should be first performed in contract consisting of reciprocal promises
When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed and the promisor of the promise last mentioned fails to perform it, such promisor 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 contract.
5. Reciprocal promises to do things legal and also other things illegal When persons reciprocally promise, firstly to do certain things which are legal and secondly, under specified circumstances, to do certain other things which are illegal, the first set of promises is a contract, but the second is a void
agreement.
6. Agreement to do impossible act
An agreement to do an act impossible in itself is void.
