Who will Perform the Contract?
Under Para 1 to Section 40, it is laid down that where it appears from the nature of the contract, the intention of the parties that any promise contained in it must be performed by the promisor himself or by his legal representatives or by any other competent person employed by him, then such promise must be performed by the promisor himself or by his legal representatives or by any other competent person employed by him.
According to Para 2 of Section 40, the promisor may employ a competent person such as agent to perform the promise, if the contract is not formed on personal condition.
A contractwhich involves the use of personal skill oritis foundonpersonalconsiderations, comes to an end if the promisor dies. Of course in case of other contracts, the legal representatives of a deceased promisor are bound to perform it as provided in Para 2 of Section 37.
For Example M promises to sell his car for (Rs. 1,00,000) to N after a week. But, M dies after 5 days of the contract. M’s representative will be liable to sell the car to N and N will be liable to pay Rs. 1,00,000/- to M’s representative.
According to Section 41, if a promisee accepts the performance of the promise by a third person he cannot afterwards enforce it against the promisor.
a. Devolution of Joint Liabilities (Section 42)
Section.42 of Indian Contract Act lays down that ‘‘When two or more persons have made a joint promise, then unless a contrary intention appears in the contract, all such persons, during their joint lives and after the death of the last survivor, representatives of all, jointly must fulfil the promise”
b. Devolution of Joint Rights (Section 45)
“When a person has made a promise to two or more persons jointly, then unless there is a contract to the contrary, the right to claim performance rests as between him and them, with them during their joint lives: and after the death of them with representatives of such deceased person jointly with survivors, and after the death of last survivor, with the representatives of all jointly”.
It is only the promisee for whom the contract is performed. Only the promisee can demand the performance of the promise under a contract.
Of course, there are certain special cases, where a third party can enforce a promise though he is not a party to the contract For example in respect of trust, marriage settlement etc. In case of death of promisee, the representative appointed by him can ask for the performance of the promise under a contract.
Various legal provisions are laid down under Section 46 to 50 regarding the time, place and manner of performance of a contract. So, as far as the time, place and manner of performance of a contract are concerned it must be agreed upon by the parties to the contract themselves. The legal provisions regarding these are given below –
1. Under Section 46, performance within a reasonable time:
According to Section 46, a promisor is to perform his promise within a reasonable time. On the other hand, reasonable time will depend upon the circumstance of the case, the usage of trade or on the intention of the parties entering into the contract.
2. Under Section 47, specified time and place for performance:
If the promise is to be performed on a certain day, the promisor may undertake to perform it without application of the promisee. According to the Section 47, In such a case the promisor may perform the promise at any time during the usual hours of business on such day and at the place at which the promise ought to be performed.
3. Under Section 48, performance on a certain day:
If the promise is to be performed on a certain day the promisor may undertake to perform it after the application by the promisee to that effect.
4. Under Section 49, performance of promise when no place is fixed and without application:
If the promise is to be performed without application by the promisee and where no place is mentioned to be performed of the contract then it is the duty of the promisor to apply to the promisee to provide a reasonable place for the performance of the promise and to perform it at such place.
5. Under Section 50, performance is prescribed by the promisee:
According to Section 50, theperformance of any promise may be made in any manner or at any time, which the promisee prescribes. Example: T owes S Rs. 2,00,000/- to accept T’s car value of Rs. 1,00,000/- in reduction of the debt. The delivery of the car will amount to a part payment of the debt.