Performance of promise | ‘A’ enters into a contract with ‘B’, an interior decorator. ‘B’ has promised to execute a turnkey project which includes design and supply of furniture… What are the remedies available to ‘A’ under the Indian Contract Act and the law of succession? Whether legal representatives of ‘B’ are liable to perform the promise made by ‘B’?

Question: Performance of promise | ‘A’ enters into a contract with ‘B’, an interior decorator. ‘B’ has promised to execute a turnkey project which includes design and supply of furniture and furnishings for Rs. 20,000/-. ‘A’ pays ‘B’ Rs. 1, 00,000/- in advance.

‘B’ dies within one week after he has received an advance payment of Rs. 1, 00,000/-, without furnishing drawing, furniture, etc. What are the remedies available to ‘A’ under the Indian Contract Act and the law of succession? Whether legal representatives of ‘B’ are liable to perform the promise made by ‘B’? [DJS 2018]

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Answer

A contract that cannot be performed because of subsequent impossibility becomes void when performance becomes impossible. It discharges both parties from further performance; this discharge is automatic and independent of the volition of parties. The aggrieved party cannot keep it alive. If a contract becomes void, any person who has received any advantage under the contract must restore it or make compensation for it to the person from whom he received it.

“A party to a contract is excused from performance if it depends upon the existence of a given person if that person perishes” or becomes too ill to perform. Thus, where the nature or terms of a contract require personal performance by the promisor, his death or incapacity puts an end to the contract. Robinson v. Davison [(1871) LR 6 Exch 269] is a well-known authority.

There was a contract between the plaintiff and the defendant’s wife, who was an eminent pianist that she should play the piano at a concert to be given by the plaintiff on a specified day. On the morning of the day in question, she informed the plaintiff that she was too ill to attend the concert. The concert had to be postponed and the plaintiff lost a sum of money.

The plaintiff’s action for breach of contract failed. The court said that under the circumstances she was not merely excused from playing, but she was also not at liberty to play if she was unfit to do so. The contract was clearly subject to the condition of her being well enough to perform:

“The whole contract is based on the assumption of the continuance of life, and on the conditions which existed at the time. That assumption is made by both; it is really the foundation of the contract. It does not require close reasoning to prove that if the foundation fails, the whole contract must fail. Here the foundation was wanting for there was on Mrs. Davison’s part an entire and total incapacity to do the thing contracted for.”

Thus, when personal considerations are the foundation of the contract, the death or incapacity of a party will generally discharge the contract, unless there is a stipulation express or implied to the contrary. But, in such cases, where some payment has been made in advance to the deceased party, the death of one of the parties does not affect a right of action, which vested under the contract before his death.

In the present case at hand, where ‘B’ promised A to execute a turnkey project which includes design and supply of furniture and furnishings for Rs. 20,000/- and ‘A’ pays ‘B’ Rs. 1, 00,000/- in advance.

‘A’ has the remedy under Section 65 of the Indian Contract Act to get the advance money restored to him and that legal duty can be enforced against the legal representatives of ‘B’ because after B’s death all the benefits would accrue to his LR’s under the law of succession. The LR’s of B can thus be bound to restore the benefit under Section 65 of the contract act.

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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