lecture-12 - LESSON 12: PERFORMANCE AND DISCHARGE OF A...

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Learning Outcomes After todays class you should be able to answer the following questions: · The performance of a contract · The time and place of performance · The performance of reciprocal promises · The appropriation of payment · The contracts which need not be performed · The modes of discharge of a contract Introduction Let us first learn about the performance of a contract Section 37 lays down that the parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. Promises bind the representatives of the promisors in case of death of such promisors before performance, unless a contrary intention appears from the contract. Illustrations a)A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay Rs. 1,000 to A’s representatives. b)A promises to paint a picture for B by a certain day, at a certain price. A dies before the day. The contract cannot be enforced either by A’s representative or by B [section 37]. The performance can be ‘actual performance’ or ‘attempted performance’, i.e. ‘offer to perform’. Section 38 specifies that where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non- performance, nor does he thereby lose his rights under the contract. Every such offer must fulfill the following conditions: 1)It must be unconditional; 2)It must be made at a proper time and place, and under such circumstances, that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do; 3)If the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. An offer to one of several joint promisees has the same legal consequences as an offer to all of them. Effect of refusal of party to perform promise wholly (Section 39) When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continu- ance. Now a question arises who are the persons who should perform the contract By Whom Contracts Must be Performed Section 40 specifies that if it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.
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lecture-12 - LESSON 12: PERFORMANCE AND DISCHARGE OF A...

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