Who must perform?
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 (Sec37 Indian contracts Act)
Every contract consists of reciprocal promises. As a general rule, the parties to the contract must perform or offer to perform their respective promises. When one party performs his promise he can enforce the performance of the promise of the other party.
The second part of the definition lays down when the parties are excused from performance. Parties are excused from performance –
1. when such performance is excused under the provisions of this act; or
2. when such performance is excused under any other law
For example, an insolvent is released from performing his part of the contract by law.
Representative’s, liability: Promises bind the legal representatives of the deceased promisor.
Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract (Sec37). The liability of the legal representatives is limited to the extent of the value of the property inherited from the deceased.
Legal representatives have the right to require specific performance or are bound by promise to perform contract in the absence of contrary intention.
(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 representatives or by B.
In cases where personal considerations like skill, personal qualities, or personal service are involved for the performance of the contract, as given in illustration (b) above, the contract cannot be enforced against the representatives of the deceased. Death of either party puts an end to the contract.
Performance is dispensed with or excused under various provisions of the Act.
If it appears from the nature of the case that it was the intention of the parties to any contract that 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 (Sec 40).
(a) A promises to pay B a sum of money. A may perform his promise either by personally paying the money to B, or by causing it to paid to B by another, and if A dies before the time appointed for payment, his representatives must perform the promise or employ some proper person to do so.
(b) A promises to paint a picture for B. A must perform this promise personally.
The best example under the section can be of a contract to marry which is to be performed by the parties to the contract only and cannot be assigned.
Contracts based on personal confidence cannot be performed by the assignee or a deputy. However, where there is no personal element involved, contract can be performed by the assignee or a deputy; for example, payment of price, delivery of goods etc. Representatives of the deceased promisee may enforce such contracts. When a promisee accepts performance of the promise from a third person he cannot afterwards enforce it against the promisor.
(a) In case of a personal contract – by the promisor personally
(b) In case of non-personal contracts—
i. by the promisor personally;
ii. by a third person on behalf of the promisor;
iii. in the event of the death of promisor by his legal representatives
(c) In case of joint promisors – by the promisors jointly or third person on behalf of the promisors or their legal representatives.