"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 Indian Contract Act, 1872 or of any other law.” Explain the statement in light of the provisions of the Act relating to the performance of contracts.

Question: “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 Indian Contract Act, 1872 or of any other law.” Explain the statement in light of the provisions of the Act relating to the performance of contracts. [BJS 1991]

Find the answer to the mains question only on Legal Bites. [“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 Indian Contract Act, 1872 or of any other law.” Explain the statement in light of the provisions of the Act relating to the performance of contracts.]

Answer

Section 37 says that “the parties to a contract must either perform or offer to perform, their respective promises….” Thus, each party is bound to perform his obligation under the contract, unless the performance is dispensed with or excused under the provisions of the Contract Act, or of any other law. The section lays down the duty of performance in general. A promisor under a contract is under an obligation to perform his promise under the contract, or at least to offer to perform it, i.e., to attempt to perform it (Section 38). The section also states the extent to which the promises bind legal representatives of deceased promisors.

Section 37 lays down the obligation to perform proceeds as follows

Section 37- Obligation of parties to contracts: “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 this Act, or of any other law.

Promises bind the representative of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract. For example

• ‘A’ promises to deliver goods to ‘S’ on a certain day on payment of Rs 1000/-. ‘A’ died before that day. A’s representatives are bound to deliver the goods to ‘S’, and ‘S’ is bound to pay Rs 1000/- to A’s representatives.
• ‘A’ promises to paint a picture for ‘S’ by a certain day, at a certain price. ‘A’ dies before the day so, the contract cannot be enforced either by A’s representatives or by ‘S’ because the personal skill of ‘A’ is involved in this case.

The basic rule is that the promisor must perform exactly what he has undertaken to do. The obligation to perform is absolute. 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. This section lays down the general principle that the parties to a contract are under the duty of performing their respective promises.

Offer of performance as discussed in Section 38 provides that the promisor, must offer to perform his obligation under the contract to the promisee. This offer is called “tender of performance“. It is then for the promisee to accept the performance. If he does not accept, “the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract”.

In other words, the tender of performance, if rejected by the other party, excuses the promisor from further performance and entitles him to sue the promisee for breach of the contract. Thus, a tender of performance is equivalent to performance.

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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