UNIT 4 : PERFORMANCE OF CONTRACT

This unit explains- who must perform his obligation, what should be the mode of performance, and
what shall be the consequences of non- performance.

4.1 OBLIGATIONS OF PARTIES TO CONTRACTS-(SECTION 37)

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 the Contract Act or of any
other law.
Promises bind the representatives of the promisor in case of death of such promisor before
performance, unless a contrary intention appears from the contract.
Example 1: A promises to deliver goods to B on a certain day on payment of ` 1,00,000. A dies
before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay `
1,00,000 to A’s representatives.
Example 2: 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 because it involves use
of personal skill. It is a contract of personal nature.

Analysis of Section 37
A contract being an agreement enforceable by law, creates a legal obligation, which subsists until
discharged. Performance of the promise or promises remaining to be performed is the principal and
most usual mode of discharge.
The basic rule is that the promisor must perform exactly what he has promised to perform. The
obligation to perform is absolute.Thus, it may be noted that it is necessary for a party who wants to
enforce the promise made to him, to perform his promise for himself or offer to perform his promise.
Only after that he can ask the other party to carry out his promise. This is the principle which is
enshrined in Section 37.Thus, it is the primary duty of each party to a contract to either perform or
offer to perform his promise. He is absolved from such a responsibility only when under a provision
of law or an act of the other party to the contract, the performance can be dispensed with or
excused.
Thus, from above it can be drawn that performance may be actual or offer to perform.
Actual Performance: Where a party to a contract has done what he had undertaken to do or
either of the parties have fulfilled their obligations under the contract within the time and in the
manner prescribed.
Example: X borrows ` 5,00,000 from Y with a promise to be paid after 1 month. X repays the
amount on the due date. This is actual performance.
Offer to perform or attempted performance or tender of performance: It may happen sometimes,
when the performance becomes due, the promisor offers to perform his obligation but the promisee
refuses to accept the performance.
Example: P promises to deliver certain goods to R. P takes the goods to the appointed place during
business hours but R refuses to take the delivery of goods. This is an attempted performance as P
the promisor has done what he was required to do under the contract.

4.2 BY WHOM A CONTRACT MAY BE PERFORMED

(SECTION 40, 41 AND 42)

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Person by whom promise is to be performed-Section 40 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.
Example 1: A promises to pay B a sum of money. A may perform this promise, either by personally
paying the money to B, or by causing it to be 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.
Example 2: A promises to paint a picture for B and this must be performed by the promisor himself.

Analysis of Section 40 The promise under a contract may be performed, as the

circumstances may permit, by the promisor himself, or by his agent or his legal representative.
1. Promisor himself: If there is something in the contract to show that it was the intention of the
parties that the promise should be performed by the promisor himself, such promise must be
performed by the promisor. This means contracts which involve the exercise of personal skill or
diligence, or which are founded on personal confidence between the parties must be performed by
the promisor himself.
Example: A promises to paint a picture for B and this must be performed by the promisor himself.
2. Agent: Where personal consideration is not the foundation of a contract, the promisor or his
representative may employ a competent person to perform it.
3. Legal Representatives: A contract which involves the use of personal skill or is founded on
personal consideration comes to an end on the death of the promisor. As regards any other contract
the legal representatives of the deceased promisor are bound to perform it unless a contrary
intention appears from the contract (Section 37, para 2). But their liability under a contract is
limited to the value of the property they inherit from the deceased.
Example 1: A promises to B to pay ` 100,000 on delivery of certain goods. A may perform this
promise either himself or causing someone else to pay the money to B. If A dies before the time
appointed for payment, his representative must pay the money or employ some other person to
pay the money. If B dies before the time appointed for the delivery of goods, B’s representative
shall be bound to deliver the goods to A and A is bound to pay `100,000 to B’s representative.
Example 2: A promises to paint a picture for B for a certain price.
A is bound to perform the promise himself. He cannot ask some other painter to paint the picture
on his behalf. If A dies before painting the picture, the contract cannot be enforced either by A’s
representative or by B.
4. Third persons: Effect of accepting performance from third person- Section 41
When a promisee accepts performance of the promise from a third person, he cannot afterwards
enforce it against the promisor. That is, performance by a stranger, if accepted by the promisee, this
results in discharging the promisor, although the latter has neither authorised not ratified the act of
the third party.
Example: A received certain goods from B promising to pay ` 100,000/-. Later on, A expressed his
inability to make payment. C, who is known to A, pays ` 60,000/- to B on behalf of A. However, A
was not aware of the payment. Now B is intending to sue A for the amount of ` 100,000/-.
As per Section 41 of the Indian Contract Act, 1872, when a promisee accepts performance of the
promise from a third person, he cannot afterwards enforce it against the promisor. That is,
performance by a stranger, accepted by the promisee, produces the result of discharging the

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promisor, although the latter has neither authorised nor ratified the act of the third party.
Therefore, in the present instance, B can sue only for the balance amount i.e., ` 40,000/- and not
for the whole amount.
5. Joint promisors: (Section 42) When two or more persons have made a joint promise, then unless a
contrary intention appears by the contract, all such persons must jointly fulfill the promise. If any of
them dies, his legal representatives must, jointly with the surviving promisors, fulfill the promise. If
all of them die, the legal representatives of all of them must fulfill the promise jointly.
Example: ‘A’, ‘B’ and ‘C’ jointly promised to pay ` 6,00,000 to ‘D’. Here ‘A’, ‘B’ and ‘C’ must jointly
perform the promise. If ‘A’ dies before performance, then his legal representatives must jointly with
‘B’ and ‘C’ perform the promise, and so on. And if all the three (i.e. ‘A’, ‘B’ and ‘C’) die before
performance, then the legal representatives of all must jointly perform the promise.

4.3 DISTINCTION BETWEEN SUCCESSION AND

ASSIGNMENT
Distinction between two legal concepts, viz., succession and assignmentmay be noted carefully.
When the benefits of a contract are succeeded to by process of law, then both burden and benefits
attaching to the contract, may sometimes devolve on the legal heir. Suppose, a son succeeds to the
estate of his father after his death, he will be liable to pay the debts and liabilities of his father
owed during his life-time. But if the debts owed by his father exceed the value of the estate
inherited by the son then he would not be called upon to pay the excess. In other words, the liability
of the son will be limited to the extent of the property inherited by him.
In the matter of assignment, however the benefit of a contract can only be assigned but not the
liabilities thereunder. This is because when liability is assigned, a third party gets involved therein.
Thus a debtor cannot relieve himself of his liability to creditor by assigning to someone else his
obligation to repay the debt.
On the other hand, if a creditor assigns the benefit of a promise, he thereby entitles the assignee to
realise the debt from the debtor but where the benefit is coupled with a liability or when a
personal consideration has entered into the making of the contract then the benefit cannot be
assigned.

4.4 EFFECT OF REFUSAL TO ACCEPT OFFER OF

PERFORMANCE
According to Section 38 of the Act - where a promisor has made an offer of performance to the
promisee, and the offer has not been accepted, then the promisor is not responsible for non
performance, nor does he thereby lose his rights under the contract.
Every such offer must fulfill certain conditions which are as follows, namely:
(i) it must be unconditional;
(ii) 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;
(iii) if the offer is an offer to deliver anything to the promisee, then 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.

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An offer to one of several joint promisees has the same legal consequences as an offer to all of
them.

4.5 EFFECT OF A REFUSAL OF PARTY TO PERFORM

PROMISE
According to 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 continuance.
Example: A, singer, enters into a contract with B, the Manager of a theatre, to sing at his theatre
two nights in every week during next two months, and B engages to pay her ` 1,00,000 for each
night’s performance. On the sixth night, A willfully absents herself from the threatre. B is at liberty
to put an end to the contract.
Analysis of Section 39 From language of Section 39 it is clear that in the case under consideration,
the following two rights accrue to the aggrieved party, namely, (a) to terminate the contract; (b)
to indicate by words or by conduct that he is interested in its continuance.
In case the promisee decides to continue the contract, he would not be entitled to put an end to the
contract on this ground subsequently. In either case, the promisee would be able to claim damages
that he suffers as a result on the breach.

4.6 LIABILITY OF JOINT PROMISOR & PROMISEE

Devolution of joint liabilities (Section 42) When two or more persons have made a joint promise,
then, unless a contrary intention appears by the contract, all such persons, during their joint lives
and after the death of any of them, his representative jointly with the survivor or survivors and
after the death of last survivor, the representatives of all jointly, must fulfil the promise.
Analysis of Section 42
If two or more persons have made a joint promise, ordinarily all of them during their life-time must
jointly fulfill the promise. After death of any one of them, his legal representative jointly with the
survivor or survivors should do so. After the death of the last survivor the legal representatives of all
the original copromisors must fulfil the promise.
Example : X, Y and Z who had jointly borrowed money must, during their life-time jointly repay the
debt. Upon the death of X his representative, say, S along with Y and Z should jointly repay the
debt and so on. This rule is applicable only if the contract reveals no contrary intention.
We have seen that Section 42 deals with voluntary discharge of obligations by joint promisors. But if
they do not discharge their obligation on their own volition, what will happen? This is what Section
43 resolves.
Any one of joint promisors may be compelled to perform – Section 43
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.
Each promisor may compel contribution – Each of two or more joint promisors may compel every
other joint promisor to contribute equally with himself to the performance of the promise, unless a
contrary intention appears from the contract.
In other words, if one of the joint promisors is made to perform the whole contract, he can call for a
contribution from others.

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Sharing of loss by default in contribution – If any one of two or more joint promisors makes default
in such contribution, the remaining joint promisors must bear the loss arising from such default in
equal shares.
Explanation to Section 43
Nothing in this section shall prevent a surety from recovering, from his principal, payments made by
the surety on behalf of the principal, or entitle the principal to recover anything from the surety on
account of payment made by the principal.
Example 1: A, B and C jointly promise to pay D ` 3,00,000. D may compel either A or B or C to
pay him ` 3,00,000.
Example 2: A, B and C are under a joint promise to pay D ` 3,00,000. C is unable to pay anything
A is compelled to pay the whole. A is entitled to receive ` 1,50,000 from B.
We thus observe that the effect of Section 43 is to make the liability in the event of a joint contract,
both joint & several, in so far as the promisee may, in the absence of a contract to the contrary,
compel anyone or more of the joint promisors to perform the whole of the promise.
Effect of release of one joint promisor- Section 44
The effect of release of one of the joint promisors is dealt with in Section 44 which is stated below:
Where two or more persons have made a joint promise, a release of one of such joint promisors by
the promisee does not discharge the other joint promisor or joint promisors, neither does it free the
joint promisors so released from responsibility to the other joint promisor or promisors.
Example: ‘A’, ‘B’ and ‘C’ jointly promised to pay ` 9,00,000 to ‘D’. ‘D’ released ‘A’ from liability. In
this case, the release of ‘A’ does not discharge ‘B’ and ‘C’ from their liability. They remain liable to
pay the entire amount of ` 9,00,000 to ‘D’. And though ‘A’ is not liable to pay to ‘D’, but he
remains liable to pay to ‘B’ and ‘C’ i.e. he is liable to make the contribution to the other joint
promisors.
Rights of Joint PromiseesThe law relating to Devolution of joint rights is contained in Section 45
which is reproduced below:
“When a person has made a promise to two or more persons jointly, then unless a contrary
intention appearsfrom the contract, the right to claim performance rests, as between him and
them, with them during their joint lives, and after the death of any of them, with the
representative of such deceased person jointly with the survivor or survivors, and after the death of
the last survivor, with the representatives of all jointly”.
Example: : A, in consideration of ` 5,00,000 rupees lent to him by B and C, promises B and C jointly
to repay them that sum with interest on a specified day but B dies. In such a case right to demand
payment shall rest with B’s legal representatives, jointly with C during C’s life-time, and after the
death of C, with the legal representatives of B and C jointly.

4.7 TIME AND PLACE FOR PERFORMANCE OF THE

PROMISE
The law on the subject is contained in Sections 46 to 50 explained below:
(i) Time for performance of promise, where no application is to be made and no time is specified -
Section 46

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Where, by the contract, a promisor is to perform his promise without application by the promisee,
and no time for performance is specified, the engagement must be performed within a reasonable
time.
Explanation to Section 46 - The expression reasonable time is to be interpreted having regard to
the facts and circumstances of a particular case.
(ii) Time and place for performance of promise, where time is specified and no application to be
made – Section 47
When a promise is to be performed on a certain day, and the promisor has undertaken to perform
it without application by the promise, the promisor may perform it at any time during the usual
hours of business, on such day and the place at which the promise ought to be performed.
Example: If the delivery of goods is offered say after sunset, the promisee may refuse to accept
delivery, for the usual business hours are over. Moreover, the delivery must be made at the usual
place of business.
(iii) Application for performance on certain day to be at proper time and place – Section 48 When
a promise is to be performed on a certain day, and the promisor has not undertaken to perform it
without application by the promisee, it is the duty of the promisee to apply for performance at a
proper place and within the usual hours of business.
Explanation to Section 48 states that the question “what is a proper time and place” is, in each
particular case, a question of fact.
(iv) Place for the performance of promise, where no application to be made and no place fixed for
performance - Section 49
When a promise is to be performed without application by the promisee, and no place is fixed for
the performance of it, it is the duty of the promisor to apply to the promisee to appoint a
reasonable place for the performance of the promise, and to perform it at such a place. Example: A
undertakes to deliver a thousand maunds of jute to B on a fixed day. A must apply to B to appoint
a reasonable place for the purpose of receiving it, and must deliver it to him at such place.
(v) Performance in manner or at time prescribed or sanctioned by promisee - Section 50
The performance of any promise may be made in any such manner, or at any time which the
promisee prescribes or sanctions.

4.8 PERFORMANCE OF RECIPROCAL PROMISE

The law on the subject is contained in Sections 51 to 58. The provisions thereof are summarized
below:
(i) Promisor not bound to perform, unless reciprocal promise ready and willing to perform -
Section 51
When a contract consists of reciprocal promises to be simultaneously performed, no promisor need
to perform his promise unless the promisee is ready and willing to perform his reciprocal promise.
Example: A and B contract that A shall deliver the 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.
Analysis of Section 51
Simultaneous performance of reciprocal promises: Reciprocal promises may have to be performed
simultaneously, or one after the other. Where A promises to deliver rice and B promises to pay the
price on delivery, both the promises are to be performed simultaneously, and both A and B must

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be ready and willing to perform their respective promises. Such promises constitute concurrent
conditions and the performance of one of the promises is conditional on the performance of the
other. If one of the promises is not performed the other too need not be performed. If A, in the
above-mentioned example, is unwilling to deliver the rice on payment, A will be guilty of breach of
promise and the breach would relieve B of the obligation to perform his promise and would enable
B to treat the contract as at an end.
(ii) Order of performance of reciprocal promises- Section 52
When the order of performance of the reciprocal promises 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 and 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.
Analysis of Section 52 - The order of performance may sometimes be indicated not expressly, but by
the nature of the transaction. For example, A and B contract that A shall make over his stock-in-
trade to B at a fixed price, and B promises to give security for the payment of the price. A’s promise
to make over his stock need not be performed, until the security is given by , for the nature of the
transaction requires that A should have the security from B before he delivers his stock.
(iii) Liability of party preventing event on which the contract is to take effect – Section 53
When a contract contains 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 he may sustain in
consequence of the non- performance of the contract.
Example 1: A and B contract that B shall execute some work for A for a thousand rupees. B is ready
and willing to execute the work accordingly, but A prevents him from doing so. The contract is
voidable at the option of B; and 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.
Example 2: In a contract for the sale of standing timber, the seller is to cut and cord it, whereupon
buyer is to take it away and pay for it. The seller cords only a part of the timber and neglects to
cord the rest. In that event the buyer may avoid the contract and claim compensation from the
seller for any loss which he may have sustained for the non-performance of the contract.
(iv) Effect of default as to that promise which should be first performed, in contract consisting of
reciprocal promises (Section 54)
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 the non- performance of the contract.

Analysis of Section 54

Section 54 applies when the promises are reciprocal and dependent. If the promisor who has to
perform his promise before the performance of the other’s promise fails to perform it, he cannot
claim performance of the other’s promise, and is also liable for compensation for his non-
performance.

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Example: A hires B’s ship to take in and convey, from Kolkata to the Mauritius, a cargo to be
provided by A, B receiving a certain freight for its conveyance. A does not provide any cargo for
the ship. A cannot claim the performance of B’s promise, and must make compensation to B for the
loss which B sustains by the non-performance of the contract.

(v) Effects of Failure to Perform at a Time Fixed in a Contract in which Time is Essential(Section 55)
The law on the subject is contained in Section 55 which is reproduced below:
“When a party to a contract promises to do certain thing at or before the specified time, and fails
to do any such thing at or before the specified time, the contract, or so much of it as has not been
performed, becomes voidable at the option of the promisee, if the intention of the parties was that
time should be of essence of the contract”.

Effect of such failure when time is not essential

If it was not the intention of the parties that time should be of essence of the contract, the contract
does not become voidable by the failure to do such thing at or before the specified time; but the
promisee is entitled to compensation from the promisor for any loss occasioned to him by such
failure.

Effect of acceptance of performance at time other than agreed upon

If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the
time agreed, the promisee accepts performance of such promise at any time other than agreed, the
promisee cannot claim compensation for any loss occasioned by the non-performance of the
promise at the time agreed, unless, at the time of acceptance, he gives notice to the promisor of his
intention to do so.

Analysis of Section 55
But ordinarily, from an examination of a contract, it is difficult to ascertain whether time is
intended to be of essence by the parties at the time of its formation. In every case, the intention is
to be gathered from the terms of the contract.

In a mercantile contract, the general rule in this regard is that stipulations as to time, except as to
time for payment of money, are essential conditions, since punctuality is of the utmost importance
in the business world. Thus, on a sale of goods that are notoriously subject to rapid fluctuation of
market price, e.g. gold, silver, shares having a ready market the time of delivery is of the essence of
the contract. But in mortgage bond, the time fixed for the repayment of the mortgage money can
by no means be regarded as an essential condition; consequently, the mortgaged property can be
regained even after the due date. Similarly, in a contract to sell land any clause limiting the time of
completion is not strictlyenforced. But even in a contract for the sale of land, time can be made the
essence of the contract by express words.

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Contract cannot be avoided where time is not essential: Where time is not essential, the contract
cannot be avoided on the ground that the time for performance has expired, there the promisee is
only entitled to compensation from the promisor for any loss caused by the delay. But it must be
remembered that even where time is not essential it must be performed within a reasonable time;
otherwise it becomes voidable at the option of the promisee.
Effect of acceptance of performance out of time: Even where time is essential the promisee may
waive his right to repudiate the contract, when the promisor fails to perform the promise within the
stipulated time. In that case, he may accept performance at any time other than that agreed. In
such an event, he cannot claim compensation for any loss occasioned by the non-performance of
the promise at the time agreed, unless at the time of acceptance of the performance he has given a
notice to the promisor of his intention to claim compensation.
(vi) Agreement to do Impossible Act
Section 56 contemplates various circumstances under which agreement may be void, since it is
impossible to carry it out. The Section is reproduced below:

“An agreement to do an act impossible in itself is void”.

Contract to do act afterwards becoming impossible or unlawful: A contract to do an act which,
after the contract is made, becomes impossible, or, by reason of some event which the promisor
could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful: where
one person has promised to do something which he knew, or, with reasonable diligence, might have
known, and which the promisee did not know, to be impossible or unlawful, such promisor must
make compensation to such promisee for any loss which such promisee sustains through the non-
performance of the promise.

Example : A agrees with B to discover treasure by magic. The agreement is void.

Analysis of Section 56
The impossibility of performance may be of the two types, namely (a) initial impossibility, and (b)
subsequent impossibility.

(1) Initial Impossibility (Impossibility existing at the time of contract): When the parties agree upon
doing of something which is obviously impossible in itself the agreement would be void. Impossible
in itself means impossible in the nature of things. The fact of impossibility may be and may not be
known to the parties.

Example: ‘A’, a Hindu, who was already married, contracted to marry ‘B’, a Hindu girl. According
to law, ‘A’ being married, could not marry ‘B’. In this case, ‘A’ must make compensation to ‘B’ for
the loss caused to her by the non-performance of the contract.

If known to the parties: It would be observed that an agreement constituted, quite unknown to the
parties, may be impossible of being performed and hence void.

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Example: B promises to pay a sum of ` 5,00,000 if he is able to swim across the Indian Ocean from
Mumbai to Aden within a week. In this case, there is no real agreement, since both the parties are
quite certain in their mind that the act is impossible of achievement. Therefore, the agreement,
being impossible in itself, is void.
(ii) If unknown to the parties: Where both the promisor and the promisee are ignorant of the
impossibility of performance, the contract is void. (iii) If known to the promisor only: Where at the
time of entering into a contract, the promisor alone knows about the impossibility of performance,
or even if he does not know though he should have known it with reasonable diligence, the
promisee is entitled to claim compensation for any loss he suffered on account of non-performance.
(iii) If known to the promisor only: Where at the time of entering into a contract, the promisor
alone knows about the impossibility of performance, or even if he does not know though he should
have known it with reasonable diligence, the promisee is entitled to claim compensation for any loss
he suffered on account of non-performance.
(2) Subsequent or Supervening impossibility (Becomes impossible after entering into contract):
When performance of promise become impossible or illegal by occurrence of an unexpected event
or a change of circumstances beyond the contemplation of parties, the contract becomes void e.g.
change in law etc. In other words, sometimes, the performance of a contract is quite possible when
it is made. But subsequently, some event happens which renders the performance impossible or
unlawful. Such impossibility is called the subsequent or supervening. It is also called the
postcontractual impossibility. The effect of such impossibility is that it makes the contract void, and
the parties are discharged from further performance of the contract.
Example: ‘A’ and ‘B’ contracted to marry each other. Before the time fixed for the marriage, ‘A’
became mad. In this case, the contract becomes void due to subsequent impossibility, and thus
discharged.
(vii)Reciprocal promise to do certain things that are legal, and also some other things that are
illegal- Section 57
Where persons reciprocally promise, first 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 valid
contract, but the second is a void agreement.
Example: A and B agree that A will sell a house to B for ` 500,000 and also that if B uses it as a
gambling house, he will pay a further sum of ` 750,000. The first set of reciprocal promises, i.e. to
sell the house and to pay ` 500,000 for it, constitutes a valid contract. But the object of the second,
being unlawful, is void.
(viii)‘Alternative promise’ one branch being illegal:- Section 58
The law on this point is contained in Section 58 which says that “In the case of the alternative
promise, one branch of which is legal and the other illegal, the legal branch alone can be enforced”.
Example: A and B agree that A shall pay B ` 1,00,000, for which B shall afterwards deliver to A
either rice or smuggled opium.
This is a valid contract to deliver rice, and a void agreement as to the opium.

4.9 APPROPRIATION OF PAYMENTS

Sometimes, a debtor owes several debts to the same creditor and makes payment, which is not
sufficient to discharge all the debts. In such cases, the payment is appropriated (i.e. adjusted against
the debts) as per Section 59 to 61 of the Indian Contract Act.

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i. Application of payment where debt to be discharged is indicated (Section 59): Where a

debtor, owing several distinct debts to one person, makes a payment to him either with
express intimation or under circumstances implying that the payment is to be applied to
the discharge of some particular debt, the payment, if accepted, must be applied
accordingly.
ii. Application of payment where debt to be discharged is not indicated (Section 60): Where
the debtor has omitted to intimate and there are no other circumstances indicating to
which debt the payment is to be applied the creditor may apply it at his discretion to any
lawful debt actually due and payable to him from the debtor, where its recovery is or is not
barred by the law in force for the time being as to the limitation of suits.
iii. Application of payment where neither party appropriates (Section 61): Where neither party
makes any appropriation, the payment shall be applied in discharge of the debts in order
of time, whether they are or are not barred by the law in force for the time being as to the
limitation of suits. If the debts are of equal standing, the payments shall be applied in
discharge of each proportionately.

4.10 CONTRACTS, WHICH NEED NOT BE PERFORMED –

WITH THE CONSENT OF BOTH THE PARTIES
Under this heading, we shall discuss the principles of Novation, Rescission and Alteration. The law is
contained in Sections 62 to 67 of the Contract Act.
i. Effect of novation, rescission, and alteration of contract (Section 62)
“If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the
original contract need not be performed”
Analysis of Section 62
(a) Effect of novation: The parties to a contract may substitute a new contract for the old. If they
do so, it will be a case of novation. On novation, the old contract is discharged and
consequently it need not be performed. Thus, it is a case where there being a contract in
existence some new contract is substituted for it either between the same parties or between
different parties the consideration mutually being the discharge of old contract. Novation can
take place only by mutual agreement between the parties.
Example: A owes B ` 100,000. A, B and C agree that C will pay B and he will accept ` 100,000
from C in lieu of the sum due from A. A’s liability thereby shall come to an end, and the old
contract between A and B will be substituted by the new contract between B and C.
(b) Effect of rescission: A contract is also discharged by rescission. When the parties to a contract
agree to rescind it, the contract need not be performed. In the case of rescission, only the old
contract is cancelled and no new contract comes to exist in its place. It is needless to point out that
novation also involves rescission. Both in novation and in rescission, the contract is discharged by
mutual agreement.
(c) Effect of alteration of contract: As in the case of novation and rescission, so also in a case where
the parties to a contract agree to alter it, the original contract is rescinded, with the result that it
need not be performed. In other words, a contract is also discharged by alteration. The terms of
contract may be so altered by mutual agreement that the alteration may have the effect of
substituting a new contract for the old one. In other words, the distinction between novation and
alteration is very slender.

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Novation and alteration: The law pertaining to novation and alteration is contained in Sections 62
to 67 of the Indian Contract Act. In both these cases the original contract need not be performed.
Still there is a difference between these two.
1. Novation means substitution of an existing contract with a new one. Novation may be
made by changing in the terms of the contract or there may be a change in the contracting
parties. But incase of alteration the terms of the contract may be altered by mutual
agreement by the contracting parties but the parties to the contract will remain the same.
2. In case of novation there is altogether a substitution of new contract in place of the old
contract. But in case of alteration it is not essential to substitute a new contract in place of
the old contract. In alteration, there may be a change in some of the terms and conditions
of the original agreement.
(ii) Promisee may waive or remit performance of promise: Section 63 -“Every promisee may
dispense with or remit, wholly or in part, the performance of the promise made to him, or may
extend the time for such performance or may accept instead of it any satisfaction which he thinks
fit”. In other words, a contract may be discharged by remission.
Example: A owes B `5,00,000. A pays to B, and B accepts, in satisfaction of the whole debt, `
2,00,000 paid at the time and place at which the ` 5,00,000 were payable. The whole debt is
discharged.
(iii) Restoration of Benefit under a Voidable Contract(Section 64)
The law on the subject is “When a person at whose option a contract is voidable rescinds it, the
other party thereto need not perform any promise therein contained in which he is the promisor.
The party rescinding avoidable contract shall, if he has received any benefit thereunder from
another party to such contract, restore such benefit, so far as may be, to the person from whom it
was received”.
Analysis of Section 64
Such a contract can be terminated at the option of the party who is empowered to do so. If he has
received any benefit under the contract, he must restore such benefit to the person from whom he
has received it.
Example: An insurance company may rescind a policy on the ground that material fact has not
been disclosed. When it does so, the premium collected by it in respect of the policy reduced by the
amount of expenses incurred by it in this connection must be repaid to the policy holder.
(iv) Obligations of Person who has Received Advantage under Void
Agreement or contract that becomes void (Section 65)
“When an agreement is discovered to be void or when a contract becomes void, any person who
has received any advantage under such agreement or contract is bound to restore it, or to make
compensation for it to the person from whom he received it.”
Analysis of Section 65
From the language of the Section, it is clear that in such a case either the advantage received must
be restored back or a compensation, sufficient to put the position prior to contract, should be paid.
Example: A pays B ` 1,00,000, in consideration of B’s promising to marry C, A’s daughter. C is dead
at the time of the promise. The agreement is void, but B must repay A ` 1,00,000.
In a case, the plaintiff hired a godown from the defendant for twelve months and paid the whole
of the rent in advance. After about seven months the godown was destroyed by fire, without any
fault or negligence on the part of the plaintiff and the plaintiff claimed a refund of a proportionate

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amount of the rent. Held, the plaintiff was entitled to recover the rent for the unexpired term, of
the contract.
The Act requires that a party must give back whatever he has received under the contract. The
benefit to be restored under this section must be benefit received under the contract (and not any
other amount). A agrees to sell land to B for ` 400,000. B pays to A ` 40,000 as a deposit at the
time of the contract, the amount to be forfeited by A if B does not complete the sale within a
specified period. B fails to complete the sale within the specified period, nor is he ready and willing
to complete the sale within a reasonable time after the expiry of that period. A is entitled to rescind
the contract and to retain the deposit. The deposit is not a benefit received under the contract, it is
a security that the purchaser would fulfill his contract and is ancillary to the contract for the sale of
the land.
(v) Communication of rescission (Section 66): You have noticed that a contract voidable at the
option of one of the parties can be rescinded; but rescission must be communicated to the other
party in the same manner as a proposal is communicated under Section 4 of the Contract Act.
Similarly, a rescission may be revoked in the same manner as a proposal is revoked.
(vi) Effects of neglect of promisee to afford promisor reasonable facilities for performance (Section
67): If any promisee neglects or refuses to afford the promisor reasonable facilities for the
performance of his promise, the promisor is excused by such neglect or refusal as to any non
performance caused thereby.
Example: If an apprentice refuses to learn, the teacher cannot be held liable for not teaching.
Example: A contracts with B to repair B’s house. B neglects or refuses to appoint out to A the places
in which his house requires repair. A is excused for the non-performance of the contract, if it is
caused by such neglect or refusal.

4.11 DISCHARGE OF A CONTRACT

A contract is discharged when the obligations created by it come to an end. A contract may be
discharged in any one of the following ways:
(i) Discharge by performance: It takes place when the parties to the contract fulfil their obligations
arising under the contract within the time and in the manner prescribed. Discharge by performance
may be
(1) Actual performance; or
(2) Attempted performance.
Actual performance is said to have taken place, when each of the parties has done what he had
agreed to do under the agreement. When the promisor offers to perform his obligation, but the
promisee refuses to accept the performance, it amounts to attempted performance or tender.
Example: A contracts to sell his car to B on the agreed price. As soon as the car is delivered to B and
B pays the agreed price for it, the contract comes to an end by performance.
(ii) Discharge by mutual agreement: Section 62 of the Indian Contract Act provides if the parties to
a contract agree to substitute a new contract for it, or to rescind or remit or alter it, the original
contract need not be performed. The principles of Novation, Rescission, Alteration and Remission
are already discussed.
Example: A owes B ` 1,00,000. A enters into an agreement with B and mortgage his (A’s), estates
for ` 50,000 in place of the debt of ` 1,00,000. This is a new contract and extinguishes the old.
Example: A owes B ` 5,00,000. A pays to B ` 3,00,000 who accepts it in full satisfaction of the
debt. The whole is discharged.

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(iii) Discharge by impossibility of performance: The impossibility may exist from the very start. In
that case, it would be impossibility ab initio. Alternatively, it may supervene. Supervening
impossibility may take place owing to:
(a) an unforeseen change in law;
(b) the destruction of the subject-matter essential to that performance;
(c) the non-existence or non-occurrence of particular state of things, which was naturally
contemplated for performing the contract, as a result of some personal incapacity like dangerous
malady;
(d) the declaration of a war (Section 56).
Example 1: A agrees with B to discover a treasure by magic. The agreement is void due to initial
impossibility.
Example 2: A and B contract to marry each other. Before the time fixed for the marriage, A goes
mad. The contract becomes void.
Example 3: A contracts to act at a theatre for six months in consideration of a sum paid in advance
by B. On several occasions A is too ill to act. The contract to act on those occasions becomes void.
(iv) Discharge by lapse of time: A contract should be performed within a specified period as
prescribed by the Limitation Act, 1963. If it is not performed and if no action is taken by the
promisee within the specified period of limitation, he is deprived of remedy at law.
Example: If a creditor does not file a suit against the buyer for recovery of the price within three
years, the debt becomes time-barred and hence irrecoverable.
(v) Discharge by operation of law: A contract may be discharged by operation of law which
includes by death of the promisor, by insolvency etc.
(vi) Discharge by breach of contract: Breach of contract may be actual breach of contract or
anticipatory breach of contract. If one party defaults in performing his part of the contract on the
due date, he is said to have committed breach thereof. When on the other hand, a person
repudiates a contract before the stipulated time for its performance has arrived, he is deemed to
have committed anticipatory breach. If one of the parties to a contract breaks the promise the
party injured thereby, has not only a right of action for damages but he is also discharged from
performing his part of the contract.
(vii) Promisee may waive or remit performance of promise: Every promisee may dispense with or
remit, wholly or in part, the performance of the promise made to him, or may extend the time for
such performance or may accept instead of it any satisfaction which he thinks fit. In other words, a
contract may be discharged by remission. (Section 63)
Example: A owes B ` 5,00,000. C pays to B `1,00,000 and B accepts them, in satisfaction of his
claim on A. This payment is a discharge of the whole claim.
(viii)Effects of neglect of promisee to afford promisor reasonable facilities for performance: If any
promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his
promise, the promisor is excused by such neglect or refusal as to any non-performance caused
thereby. (Section 67)
(ix) Merger of rights: Sometimes, the inferior rights and the superior rights coincide and meet in one
and the same person. In such cases, the inferior rights merge into the superior rights. On merger, the
inferior rights vanish and are not required to be enforced.

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Example: A took a land on lease from B. Subsequently, A purchases that very land. Now, A
becomes the owner of the land and the ownership rights being superior to rights of a lessee, the
earlier contract of lease stands terminated.

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