• PERFORMANCE
OF CONTRACT
• BUSINESS
LAW
• MEANING
• SEC 37 OF THE ACT PROVIDES
THAT THE PARTIES TO A CONTRACT MUST EITHER (I) PERFORM THEIR RESPECTIVE
PROMISES (II) OR OFFER TO PERFORM UNLESS (III) SUCH PERFORMANCE IS DISPENSED
WITH OR(IV) EXCUSED UNDER THE PROVISIONS OF THIS LAW OR ANY OTHER LAW.
• A CONTRACT IS SAID TO BE
PERFORMED WHEN PARTIES MAKE:-
1.
ACTUAL PERFORMANCE : WHEN A PARTY HAS DONE WHAT HE
UNDERTOOK TO DO THERE IS NOTHING LEFT FOR HIM TO DO.
2.
ATTEMPTED PERFORMANCE: SOMETIMES THE PROMISOR OFFERS TO
PERFORM HIS OBLIGATION,BUT THE PROMISEE DOES NOT ACEPT.
• OFFER OF PERFORMANCE OR
TENDER
1.
WHERE THE PROMISOR HAS MADE AN OFFER OF PERFORMANCE AND
OFFER HAS BEEN REFUSED THE PROMISOR IS NOT RESPONSIBLE FOR NON PERFORMANCE
2.
OFFER OF PERFORMANCE IS ALSO KNOWN AS TENDER
3.
VALID TENDER OF PERFORMANCE IS CONSIDERED TO BE
PERFORMED OF A PROMISE AND IT DISCHARGES A PARTY FROM OBLIGATION UNDER A CONTRACT
4.
IF A DEBTOR TENDERS MONEY DUE UNDER A DEBT,THE EFFECT
OF SUCH A TENDER IS TO STOP FROM THE RUNNING OF THE INTEREST ON THE AMOUNT
PAYABLE BUT THE DEBT IS NOT DISCHARGED
• ESSENTIALS
OF VALID TENDER SECTION 38
- IT MUST BE UNCONDITIONAL: A PERSON IS NOT BOUND TO
ACCEPT TENDER OF RAILWAY RECEIPT THAT IS MADE TO SUBJECT DEMUR RAGE (
HIRALAL V KHIZARHYAT KHAN) : P SENT A SINGLE CHEQUE FOR TWO ITEMS ONLY ONE
OF WHICH WAS DUE AT THE TIME WHILE THE OTHER WAS PAYABLE AFTER SOMETIME.
THE CHEQUE BEING ONE AND INDIVISIBLE COULD BE ACCEPTED AS WHOLE OR NOT AT
ALL. HELD THEY PROMISEE WAS WITHIN HIS RIGHT IN REJECTING CHEQUE.
- MUST BE MADE AT PROPER TIME AND PLACE: WHERE THE
CONTRACT PROVIDES THAT TENDER SHOULD BE MADE AT PARTICULAR PLACE AND TIME
AND IT SHOULD BE DONE. EXAMPLE A OWES TO B RS 1000 PAYABLE ON 1 ST JUNE
WITH INTEREST BUT B OFFERS TO PAY ON 1 ST MAY IT IS NOT VALID TENDER.
- MUST BE GIVEN A REASONABLE OPPORTUNITY OF
INSPECTION OF GOODS OR ARTICLES
- A CONTRACT TO DELIVER TO B AT HIS WAREHOUSE ON
FIRST MARCH 1996,100 BALES OF COTTON OF A PARTICULAR QUALITY. IN ORDER TO
MAKE A VALID OFFER OF PERFORMANCE. A 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 THINGS OFFERED IS
COTTON OF THE QUALITY CONTRACTED FOR AND THAT THERE ARE 100 BALES.
- TENDER MUST BE WHOLE AND NOT OF THE PART A TENDER
BY INSTALMENT IS VALID
- MUST BE IN PROPER FORM. TENDER OF MONEY SHOULD BE
IN THE CURRENT COINS. A PERSON IS NOT BOUND TO ACCEPT A CHEQUE.
- MUST BE MADE TO PROPER PERSON
- FOR THE DELIVERY OF GOODS MUST BE FOR THE QUANTITY
AND QUALITY AS STIPULATED IN THE CONTRACT
- PAYMENT OR TENDER CAN BE LEGALLY MADE TO EVEN ONE
OF THE JOINT PROMISEE.
• EFFECT OF REFUSAL TO
ACCEPT OFFER OF PERFORMANCE:-
1.
THE PROMISOR IS NOT RESPONSIBLE FOR THE NON PERFORMANCE
2.
NOR DOES HE LOSE HIS RIGHT
• CONTRACTS WHICH NEED NOT
BE PERFORMED
- I F THE PARTIES TO A CONTRACT AGREE TO
NOVATION,RESCISSION OR ALTERATION , THE ORIGINAL CONTRACT NEED NOT BE
PERFORMED (SEC 62)
2.
THE PROMISEE MAY DISPENSE WITH OR REMIT PERFORMANCE BY
THE PROMISOR IN WHOLE OR IN PARTS
- IN CASE OF VOIDABLE CONTRACT IS CANCELLED,THE
OTHER PARTY NEED NOT PERFORM
- FAILURE IS CAUSED BY PROMISEE’S NEGLECT OR REFUSAL,THE
PROMISOR WILL BE EXCUSED ( SECTION 63)
• BY WHOM CONTRACT MUST BE
PERFORMED
1.
BY THE PROMISOR : EITHER PERSONALLY OR THROUGH
COMPETENT PERSON. A PROMISE TO PAINT THE PICTURE FOR B. THE PROMISE MUST BE
PERFORMED BY HIMSELF.
2.
BY THE AGENT: WHERE PERSONAL SKILL IS NOT NECESSARY.HIS
AGENT CAN PERFORM
3.
BY THE REPRESENTATIVE :IN THE EVENT OF DEATH OF THE
PROMISOR BEFORE PERFORMANCE,THEIR REPRESENTATIVE ARE BOUND BY THE PROMISES
UNLESS PERSONAL CONSIDERATIONS ARE THE FOUNDATIONS OF THE CONTRACT.
4.
BY THIRD PERSON : IF THE PROMISEE ACCEPTS PERFORMANCE
OF THE PROMISE FROM A THIRD PARTY THERE IS DISCHARGE OF THE CONTRACT.
• WHO CAN DEMAND PERFORMANCE
• PROMISEE OR HIS AGENT WHO
CAN DEMAND PERFROMANCE OF THE PROMISE UNDER A CONTRACT
• IMMATERIAL WHETHER THE
PROMISE IS FOR THE BENEFIT OF THE PROMISEE OR FOR THE BENEFIT OF SOME OTHER
PERSON
• A PROMISE TO B TO SELL HIS
HOUSE TO C FOR RS 20,000. A DOES NOT PERFORM THE CONTRACT. C CANNOT SUE A. IT
IS ONLY B WHO CAN ENFORCE THE PROMISE AGAINST A.
• TIME AND PLACE OF
PERFORMANCE
46 TO 50 OF THE INDIAN CONTRACT ACT.
46 TO 50 OF THE INDIAN CONTRACT ACT.
1.
WITH IN REASONABLE TIME
2.
ON A PARTICULAR DAY
3.
REASONABLE PLACE
4.
SHOULD BE PERFORMED IN THE MANNER AND AT THE TIME
PRESCRIBED IN THE CONTRACT
• TIME AS THE ESSENCE OF THE
CONTRACT
SECTION 55
SECTION 55
A PARTY MAY PROMISE TO
PERFORM HIS OBLIGATION BY A SPECIFIED TIME. IT GIVES THE OTHER PARTY A RIGHT TO
EXPECT THAT IT SHALL BE PERFORMED AT THAT TIME. BUT IF THE PROMISOR FAILS TO DO
SO THE PROMISEE CAN RESCIND THE CONTRACT
TIME OF THE ESSENCE OF THE
CONTRACT MEANS THAT ONE WHO DOES NOT
PERFORM IN THE FULL OWN PROMISED PERFORMANCE WITHIN THE TIME SPECIFIED IN THE
CONTRACT CANNOT MAINTAIN ANY ACTION FOR THE ENFORCEMENT OF A RETURN OF PROMISE
1.
WHEN TIME IS OF THE ESSENCE OF THE CONTRACT
2.
WHEN TIME IS NOT OF THE ESSENCE OF THE CONTRACT
• WHEN TIME IS OF THE
ESSENCE OF THE CONTRACT
• THE PARTY WHO IS BOUND TO
PERFORM HIS PROMISE WITH IN THE TIME FIXED FAILS TO DO SO THE CONTRACT BECOMES
VOIDABLE AT THE OPTION OF THE OTHER PARTY
• INTENTION TO MAKE THE TIME
AS ESSENCE OF THE CONTRACT MUST BE EXPRESSED IN VERY LEAR LANGUAGE
• TIME IS ALWAYS CONSIDERED
TO BE THE ESSENCE OF THE CONTRACT:
1.
WHERE THE PARTIES HAVE EXPRESSLY PROVIDED
2.
WHERE DELAY OPERATES AS AN INJURY
3.
WHERE THE NATURE AND NECESSITY OF THE CONTRACT
•
WHEN TIME IS OF THE
ESSENCE OF THE CONTRACT
• D AGREE TO SELL AND
DELIVER 6 BALES OF COTTON TO A ON 12 TH AUGUST 2018 BUT HE FAILED TO DELIVER
THE COTTON BY THAT TIME. THE CONTRACT WAS VOIDABLE AT THE OPTION OF D.
• WHERE TIME IS NOT OF THE
ESSENCE OF THE CONTRACT AND THE PROMISOR FAILED TO PERFORM IT WITH IN THE
SPECIFIED TIME
1.
NOT ENTITLED TO AVOID THE CONTRACT
2.
ENTITLED TO COMPENSATION
BRAHADAMAMBAL AGENCY VS
RAMASWAMY AIR 2002
1.
CONTRACT FOR THE SALE OF THE IMMOVABLE PROPERTY
2.
THE AGREEMENT WAS NOT HAVING ANY CONDITION INSISTING
PAYMENT WITH IN SPECIFIED TIME
3.
THE COURT HELD THAT TIME WAS NOT THE ESSENCE OF THE
CONTRACT
•
WHEN TIME IS NOT ESSENCE
OF THE CONTRACT
• BUT RENEWAL OF A LEASE IS
SOMETHING DIFFERENT FROM THE SALE OF IMMOVABLE PROPERTY
• CALTEX ( INDIA ) LIMITED V
BHAGWAN DEVI MARODIA
1.
THE LEASE OF A
PETROL PUMP HAD TO APPLY FOR THE RENEWAL OF THE LEASE WITHIN A TIME
FIXED BY THE CONTRACT
2.
THE LESSEE WAS LATE BY 10 DAYS IN HIS APPLICATION FOR
RENEWAL
3.
THE LANDLORD REFUSED TO RENEW
4.
HELD THAT THE TIME FIXED WAS OF THE ESSENCE OF THE
BARGAIN
• EXTENSION OF
TIME,PERFORMANCE WITH EXTENDED IS PROPER PERFORMANCE
• R. K SAXENA VS DDA
1.
MR A HAD PURCHASED PLOT IN AUCTION BY DDA
2.
HE WAS GRANTED EXTENSIONS TO MAKE PAYMENT SUBJECT TO
PAYMENT OF INTEREST WHICH WERE DULY MADE BY RESPONDENTS
• IT WAS HELD PAYMENT IN
EXTENDED TIME WAS PROPER PERFORMANCE AND NO AUTHORITY TO CANCEL THE ALLOTMENT
OF THE PROJECT,
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