Section 40 | Defendant, a female, agreed to pay Rs. 5000/- to the plaintiff in consideration of the latter having the former trained in the art of singing and dancing at his own cost. It was found that the plaintiff’s sister… How would you decide on the controversy?

Question: Section 40 | Defendant, a female, agreed to pay Rs. 5000/- to the plaintiff in consideration of the latter having the former trained in the art of singing and dancing at his own cost. It was found that the plaintiff’s sister and not the plaintiff himself had rendered those services.

In a suit for recovery of the agreed amount, the defendant denied her liability to pay any amount to the plaintiff under the said agreement. How would you decide on the controversy? [DJS 1989]

Find the answer to the mains question only on Legal Bites. [Section 40 | Defendant, a female, agreed to pay Rs. 5000/- to the plaintiff in consideration of the latter having the former trained in the art of singing and dancing at his own cost. It was found that the plaintiff’s sister… How would you decide on the controversy?]

Answer

The relevant section to the present case at hand is Section 40 of the Indian Contract Act, 1872 states that:

“If it appears from the nature of the case that it was the intention of parties to contract that any promise contained in it should be performed by 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.”

The provision clearly implies that if any contract is based on the exercise of personal skill of a person or based on personal confidence, then it becomes very apparent that the intention of the promisee is that the terms of the contract must be performed by the promisor himself and nobody else.

Moreover, Section 37 of the Act also entails the same thing that 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. The intention of the legislature behind the formulation of this provision implies that when a contract is based on the personal skill of a person, it must be performed by himself, and in case he dies, his legal representatives are not bound to perform the same.

Applying the relevance of aforesaid provisions to the present case at hand, where the defendant, agreed to pay Rs. 5000/- to the plaintiff in consideration of the latter having the former trained in the art of singing and dancing but later found out that it was the plaintiff’s sister and not the plaintiff himself who had rendered those services.

The contract involved the personal skill of the plaintiff only and now he can’t claim Rs. 5000/- because it was his liability to discharge the performance of the contract by himself and nobody else. Hence, the defendant is not liable to pay the plaintiff the agreed amount, and the latter’s claim will be set aside, owing to the non-fulfilment of material terms of the contract.

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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