A written or spoken agreement, especially which is concerned with employment and sales, is intended to be enforceable by law; this is the definition of Contract.
This contract needs to come in effect and is possible by living, and sound human beings, the signing of the contract and the lawful effect of the contract are all done under the purview of sound individuals, therefore we should know all the facets in performing the contract, who performs, and what is the legal enforcement done in the formation of the contract, this is to be learned.
Introduction: Who Performs the Contract?
At least two parties are present in a contract - a promisor and a promisee. A promisee is that party to whom a promise is made and a promisor is another party who performs the promise.
A Contract can be performed by
Promisor himself
Agent
Representative
Third Person
Joint promisor
Promisor Performs the Promise
In the contract, it is to be shown that the parties intend that the promise should be performed by the promisor himself. Such a promise is to be performed by the promisor. This means that the contracts which involve the exercise of personal skill like singing or dancing or are founded on personal confidence between the parties like promising/contracting to marry is to be performed by the promisor himself.
A contract indicating that the parties intended the promisor to fulfil the promise by himself, then the promisor is mandated to perform the promise. These usually include promises which involve personal skills, experience, or expertise and these contracts are usually based on the trust between the promisor and the promisee.
Example: Mary singing at Liza’s wedding reception is a good example of a personal skill being required to perform the promise.
Section 41
Section 41 of the Indian Contract Act 1872 throws light on the "Effect of accepting performance from third person” This states that When a promisee accepts performance of the promise made from a third person, the promisee cannot afterwards divert the performance of promise against the promisor. A promisee accepting performance of the promise from a third person, will not afterwards enforce it against the promisor who is present in the contract. Section 41 focuses on the promise being transferred to the promise from any third person present in the contract. The law mandates the promise to act accordingly and fulfil the promise accepted by him.
Section 40
Section 40 of the Indian Contract Act 1872 illustrates the ‘Person by whom promises are to be performed. When it appears from the nature of the case that this was the intention of the parties to any contract that any promise contained in the contract should be performed by the promisor by himself, then such promise must be performed by the promisor necessarily. Yet in other cases, the promisor or his representative may employ a competent person to perform the promise.
Example: Sana promises to pay Michael a sum of money. Sana may perform this promise, either by personally paying the money to Michael or by causing it to be paid to Michael by another person or representative; and if Sana dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.
Section 42
Section 42 of The Indian Contract Act 1872 talks about “Devolution of Joint Liabilities”. When two or more persons made a joint promise, then (unless a contrary intention appears by the contract) all those contracting persons, during their joint lives, and, after the death of either of them, his representative jointly also with the survivor or survivors, and after the death of the last survivor, all the representatives jointly, will have to fulfil the promise. This section takes the parties jointly liable to conduct and perform a promise so contracted in. The parties in the joint liability will be required to complete this promise even if their death occurs, in that case, their legal representatives need to fulfil the same.
Performance of Contract consists of these various sections which moreover makes the contract legally enforceable. Performing of the contract can be on any – the promisor himself, the agent or the representatives appointed.
Learning the Concept of Who Performs the Contract?
Do you need to know Who Performs the Contract? When you are studying the Indian Contract Act, you will come across terms, like promisor and promisee, which are necessary to learn. If you learn all these terms, it will be much easier for you to understand the entire Indian Contract Act, 1872. Moreover, you should know everything about the elements of a valid contract and how contracts are formed. Vedantu provides you with a user-friendly platform to learn concepts, like Who Performs the Contract? - You can use our website or mobile app to study the entire Indian Contract Act and improve your understanding of contracts.
Learning Who Performs the Contract? You might have to sign a contract, say while buying a car. So, if you already know the elements of that contract, you will be able to tell whether it is valid or not. Below are some tips on how to start learning the concepts of contracts:
Go through the entire Indian Contract Act,1872, thoroughly to understand the laws and rules related to the contracts.
Make notes of the important sections in the Indian Contract Act and keep revising them so that you do not forget anything during your tests.
Use Vedantu’s online learning platform to know more about Who Performs the Contract? Our study materials are curated by highly-trained professionals who have years of experience in this field.
You can go through different examples to understand sections 40, 41, and 42 of the Indian Contract Act. These examples will make the concepts easier to learn and memorize.
Keep testing your knowledge by solving important exercise questions based on Who Performs the Contract? Before the exam, go through the revision notes of the Indian Contract Act to brush up on your knowledge and revise the entire concept.
Lastly, gain a better understanding of Who Performs the Contract? to score well in your final exam.
FAQs on Who Is Responsible for Performing Contracts?
1. Who is responsible for performing a contract according to the Indian Contract Act, 1872?
The primary responsibility to perform a contract lies with the promisor. As per Section 37, the parties to a contract must either perform or offer to perform their respective promises. If the contract's nature does not require personal performance by the promisor, they may employ a competent person to perform it on their behalf.
2. Can a third party perform the promise in a contract?
Yes, a third party can perform the promise, unless the contract specifically requires personal performance by the promisor (e.g., a contract for painting a portrait or singing). According to Section 41 of the Indian Contract Act, if the promisee accepts performance from a third person, they cannot later enforce it against the original promisor.
3. What are the key elements required for a contract to be legally valid and performable?
For a contract to be legally valid and enforceable, it must contain several essential elements as per the CBSE syllabus for Business Studies:
- Offer and Acceptance: A clear proposal by one party and its absolute acceptance by the other.
- Consideration: Something of value given by both parties to each other.
- Capacity to Contract: The parties must be of the age of majority, of sound mind, and not disqualified by any law.
- Free Consent: The agreement must not be caused by coercion, undue influence, fraud, or misrepresentation.
- Lawful Object: The purpose of the agreement must not be illegal, immoral, or against public policy.
- Possibility of Performance: The terms of the agreement must be certain and capable of being performed.
4. What is the difference between 'actual performance' and 'attempted performance' of a contract?
The key difference lies in the completion of the obligation. Actual performance is when the promisor has fulfilled their obligation under the contract exactly as required. In contrast, attempted performance, also known as 'tender' or 'offer to perform', occurs when the promisor offers to perform their obligation, but the promisee refuses to accept it. A valid tender can discharge the promisor from further liability.
5. What is meant by 'Joint Promise' and who is responsible for performance in such a case?
A 'Joint Promise' is when two or more persons make a promise together. In this scenario, the responsibility for performance is as follows:
- All joint promisors are obligated to fulfil the promise collectively.
- If one joint promisor dies, their legal representatives must perform the promise jointly with the surviving promisors.
- The promisee has the right to compel any one of the joint promisors to perform the entire promise.
6. How does the death of a promisor affect the responsibility to perform a contract?
The effect of a promisor's death depends on the contract's nature. If the contract involves personal skill or consideration (e.g., a promise to paint, sing, or marry), the contract is terminated upon the promisor's death. For all other types of contracts, the responsibility to perform passes to the legal representatives of the deceased promisor, unless the contract states otherwise.
7. Under what circumstances does a contract NOT need to be performed?
A contract does not need to be performed under specific conditions as laid out in the Indian Contract Act, 1872. These include:
- Novation, Rescission, or Alteration: If the parties agree to substitute a new contract, cancel the old one, or alter its terms (Sections 62 & 63).
- Impossibility of Performance: If the act becomes impossible or unlawful after the contract is made (Section 56), also known as frustration of contract.
- Promisee's Refusal or Neglect: If the promisee neglects or refuses to provide reasonable facilities for performance (Section 67).
- Mutual Agreement: When all parties involved mutually agree to terminate the contract.
8. What happens if a promisor fails to perform the contract by the specified time?
The consequences depend on whether time was considered the essence of the contract. If time is essential, a failure to perform within the specified period makes the contract voidable at the option of the promisee, who can then rescind it and claim damages. If time is not essential, the promisee cannot end the contract but is entitled to claim compensation for any loss caused by the delay.
