BY WHOM A CONTRACT MAY BE PERFORMED (SECTION 40-42)

Written By:- Chandrika Singh (Amity Law School)

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. 

  1. Agent: Where personal consideration is not the foundation of a contract, the promisor or his representative may employ a competent person to perform it.
  2. 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: 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: 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. 

  1. Third persons:
  • Effect of accepting performance from third person Section41 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 authorized 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 promisor, although the latter has neither authorized 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. 
  1. 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.