Personal contract | Naresh engaged Mr. Vinay a well-known painter to paint a picture depicting a particular design for him. Naresh agreed to pay a sum of Rs. 10,000/- as professional charges to Mr. Vinay. After completion of work… Mr. Vinay filed a suit for recovery of Rs. 10,000/- in civil court. Decide.

Question: Personal contract | Naresh engaged Mr. Vinay a well-known painter to paint a picture depicting a particular design for him. Naresh agreed to pay a sum of Rs. 10,000/- as professional charges to Mr. Vinay. After completion of work, it was revealed that an assistant of Mr. Vinay painted the picture but under the guidance and supervision of Mr. Vinay.

Naresh refused to pay professional charges as per the agreement. Mr. Vinay filed a suit for recovery of Rs. 10,000/- in civil court. Decide. [DJS 2005]

Find the answer to the mains question only on Legal Bites. [Personal contract | Naresh engaged Mr. Vinay a well-known painter to paint a picture depicting a particular design for him. Naresh agreed to pay a sum of Rs. 10,000/- as professional charges to Mr. Vinay. After completion of work… Mr. Vinay filed a suit for recovery of Rs. 10,000/- in civil court. Decide.]

Answer

Section 40 provides that personal contracts must be performed personally by the promisor; others may be performed by the promisors, or by any other person employed by him. Section 40 of the Indian Contract Act, 1882, lays down as under:

“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 representative may employ a competent person to perform it.”

If the contract involves the exercise of individual skill or taste of the promisor, or depends upon the competency or personal qualification of the promisor, or is otherwise founded on special personal confidence between the parties, the promisor has to perform the promise himself, and not by a representative.

For example, ‘A’ promises to paint a picture for ‘B’. ‘A’ must perform this promise personally.

In certain circumstances, the promisor may get his promise performed by getting someone else to do it. The promisor continues to be liable on the contract and not the other person actually doing the work. The promisor will be liable for any breach which may occur. The promisee will be bound to accept performance if it is in accordance with the terms of the contract.

However, where a contract involves personal skill, it may not be necessary that he personally perform each and every act in the promise. A sculptor, painter, or architect may design and supervise the work, and its manual execution may be done subject to the promisor’s final touches by other skilled persons. Less important parts of the work may at times be executed by pupils and assistants under the direction of the promisor; the promisor is bound to perform his promise personally in that he cannot delegate the design or general supervision to a junior.

Thus, applying the aforesaid reasoning to the present case at hand, where, Naresh engaged Mr. Vinay a well-known painter to paint a picture depicting a particular design for him and agreed to pay him a sum of Rs. 10,000/- as professional charges.

If after completion of work, it is revealed that an assistant of Mr. Vinay painted the picture but under the guidance and supervision of Mr. Vinay, Naresh may refuse to pay professional charges as per the agreement because the intention of the promise was to get the picture painted by Mr. Vinay, owing to his position of being a well-known painter because as per the facts the picture was entirely painted by the assistant, notwithstanding the fact that Mr. Vinay had guided his assistant, this will be in violation of the agreement.

If it would have been an assistant for minor parts, it wouldn’t have been an issue, but here the entire work is executed by the assistant under supervision. The contract was entered upon between the parties concerning the personal skill of Mr. Vinay and he cannot devolve this duty on a third party to the contract. Thus, Naresh has a right to refuse the payment of professional charges as per the agreement.

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Law of Contract Mains Questions Series: Important Questions for Judiciary, APO & University Exams

1. Law of Contract Mains Questions Series Part-I
2. Law of Contract Mains Questions Series Part-II
3. Law of Contract Mains Questions Series Part-III
4. Law of Contract Mains Questions Series Part-IV
5. Law of Contract Mains Questions Series Part-V
6. Law of Contract Mains Questions Series Part-VI
7. Law of Contract Mains Questions Series Part-VII
8. Law of Contract Mains Questions Series Part-VIII
9. Law of Contract Mains Questions Series Part-IX
10. Law of Contract Mains Questions Series Part-X