Q.3 What are the rules with regard to the performance of the contract? Under what circumstances a contract need not to be performed?
Ans: PERFORMANCE OF CONTRACT
Section 37 of Contract Act, 1872 is relevant to the performance of the contract and says 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 representative before performance, unless a contrary appears from the contract.
X promises to deliver goods to Y on certain day on payment of Rs. 1000. X dies before that day. X’s representatives are bound to deliver the good to Y and Y is bound to pay Rs, 1000/= to X’s representatives,
RULES REGARDING THE PERFORMANCE OP THE CONTRACT
The following are the rules with regard to the performance of the contract,
1. WHO CAN DEMAND PERFORMANCE
According to Contract Act the actual promisee can only demand the performance of the contract and third person cannot demand the performance of the even thought the contract may be for his benefits. In case of death of the promisee his legal representative can also demand the performance of the contract.
X promises Y to pay Z Rs. 5000/=. So only Y can demand performance but Z cannot. If X does not pay the amount to Z then Z cannot take action against X. On the death of Y, Ys legal representatives can only demand performance.
2. WHO CAN PERFORM CONTRACT [See.42J
If the performance of the contract depends on the personal qualification and skill of the promisor the promisor himself is personally responsible for the performance of the contract and no body can performance the contract on his behalf. In all other cases the promisor or his agent and third party (if allowed by promisee) can perform the contract. In case of death of the promisor, the legal representative of the promisor are also bound to perform the contract, if the contract does not depend on the personal skill of the promisor.
3. WHEN TIME IS NOT FIXED
When by the contract the promisor is to perform his promisor with out the application by the promisee and no time for the performance is specified, the contract must be performed with in reasonable time. What is reasonable time is a question of fact depends on each particular case. [Sec 46]
4. WHEN TIME IS FIXED
When promise is to perform on a certain day, and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it any time during the usual business hours on such day. [Sec.47]
5. WHEN APPLICATION IS REQUIRED
When the promise is to perform on certain day on the application of the promisee for the performance, it is the duty of the promise to apply for the performance at a proper place and usual hours of business. [Sec. 48]
6. WHEN PLACE IS FIXED
Where the place for the performance of the contract is fixed, it is the duty of the promisor that the contract must be performed at that place.
7. WHEN PLACE IS NOT FIXED
Where the place for the performance is not specified, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the contract and to perform it at such place. What is a reasonable place is a question of fact depends on each particular case.
8. MANNER OF PERFORMANCE
The performance of any promise may be made any manner or at any time which the promisee prescribes or sanctions. [Sec 50] 9.
9. RECIPROCAL PROMISES
When a contract consists of reciprocal promises to be simultaneously performed no promisee needs to perform ho promise unless the promise is ready and willing to perform his reciprocal promise. [Sec 51]
10. ORDER OP PERFORMANCE OP RECIPROCAL PROMISE
Where the order in which the 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, [Sec 52]
11. WHEN TIME IS ESSENCE OF CONTRACT
According to Section 55 when the time for the performance is essence of the contract and the contract requires to be performed at or before specified time and promisor fails to do so with in the specified time, the contract becomes void able at the option of the promisee.
44A” promises to deliver 1000 units of his product to “B” to be sold at Eid occasion. “A” delivers the goods three days after the Eid. Now the time is the essence of the contract and contract will become voidable at the option of “B”.
WHEN A CONTRACT NEED NOT TO BE PERFORMED
Under the following situations, a contract need not be performed.
1. BY AGREEMENT:
According a Section 62(1), if the parties to the contract agree to substitute a new contract for it, or to rescind or later it, the original contract needs not be performed.
2. PROMISEE MAY REMIT PERFORMANCE
According to Section 63, if the promisee himself dispenses with or remits the performance of the contract or gets satisfaction other its performance, the promisor needs not perform the contract.
3. VOIDABLE CONTRACT
When the contract is void able at the option of the promisee and rescinds performance the contract needs not be performed. [Sec 64]
4. REFUSAL TO ACCEPT PERFORMANCE
If any promisee neglects of refuses the promisor reasonable facilities for the performance of his promise the promisor is excused by such neglect refusal so to any non-performance caused there by. [Sec 67)
When the performance of the contract is impossible, the contract become void and needs not be performed.
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