Who can demand performance?
It is only the promisee who can demand performance of the promise under a contract. A third party can not demand performance of the contract even if it was made for his
In case of the death of the promisee, his legal representatives are entitled to enforce the performance of the contract.
By following contracts must be performed-
Promisor himself: If there is something in the contract to show that it was the intention of the parties that the contract must be performed by the promisor, then it must be performed by the promisor. When the contract is such that
which needs personal skill or diligence of the promisor e.g. a contract to paint a picture, a contract of agency or service,
contract to marry etc.
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.
Ex 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.
3. Legal representative: If the contract is such that which needs use of personal skill, comes to an end on the death of the promisor. The rule of law is that a personal cause of action comes to an end with the death of the person concerned. In case of any other contract, in which personal skill is not required, the legal representatives are bound to perform the contract. But their liability is limited to the value of property they get from the deceased.
Ex. A promises to deliver goods to B on a certain
day on payment of Rs. 1000. 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.
4. Performance by a third person- According to Sec 41, if a promisee accepts performance of the promise from a third person, he can not afterwards enforce it against the promisor. It is important to note that once the promisee has accepted the performance by third party, the promisor is discharged from his liability against promisee.
A is to receive Rs. 5000 from B. In place of B,
the amount of Rs. 5000 is paid by E which is accepted by A in full settlement from B. Now A can not claim any amount from B
Contracts which need not be performed
The circumstances under which contracts need not be performed are as follows-
(1) If parties to a contract agree to novation or ‘Al-
teration’, the original contract need not be performed. In such case, original contract is substituted by a new conStract.
(2) If parties to a contract agree to dispense with
remit performance of promise either wholly or in part, the original contract stands discharged. This is technically calledThippe as ‘Remission’.
(3) When a person, at whose option a contract is
voidable rescinds it, the other party need not perform his promise.
(4) If any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused for the non-performance of the contract.