Performance of a Contract - II Flashcards
Ch # 7
Promisor
If a contract is of personal nature or it was agreed that promise will be
performed by promisor himself.
Promisor’s
agent
If intention of parties is that the promise can either be performed by the
promisor himself or any person employed by him
Legal
representatives
On death of promisor
(unless contrary intention appears or contract is of personal nature)
Liability of legal representatives is limited to amount of estate of deceased
Third party
With consent of promisee a contract can be performed by a 3rd party.
(after acceptance, from 3rd person, he cannot enforce it against promisor)
Joint promisor
(devolution of
joint rights)
Unless contrary intention appears, in case of several promisors the
following persons must perform the promise:
▪ All the promisors jointly (if all are alive)
▪ Representatives of deceased promisor jointly with surviving
promisor(s)
(in case of death of any of the joint promisors)
▪ Representatives of all of them jointly (death of all joint promisors)
Rules regarding the performance of joint promise
Joint and several liability of joint promisors44
Promisee may compel anyone or more of such joint promisors to perform the whole promise.
Right to claim contribution45
Each of two or more joint promisors may compel every other joint promisor to contribute
equally with himself to the performance of the promise (unless a contrary is agreed)
Sharing of loss in contribution46
If anyone of two or more joint promisors makes default in such contribution, the remaining joint
promisors must bear the loss arising from such default in equal shares.
Release of one joint promisor by the promisee47
▪ It does not discharge the other joint promisor or joint promisors
▪ It does not free the joint promisor so released from responsibility to other joint promisors
Devolution of joint rights48
If a person has made a promise to joint promisees, then, unless contrary intention appears,
devolution of joint rights is also applicable
(all of them will together, with representative of deceased ones, demand performance)
Write the Rule of Performance in the each of the above given individual scenario:
-No time for performance is specified;
-Promise is to be performed on certain day;
-Promise is to be performed on certain day;
-Application by the promisee is needed.
-No place is fixed for the performance;
-Manner or time prescribed or sanctioned
by the promisee49
Rule of performance:
-Must be performed within a reasonable time.
-May perform it at any time during usual hours of business on such day and at place at which promise ought to be performed.
-Promisee shall apply for performance at a proper place & within usual hours of business
-Promisor shall apply promisee to appoint a reasonable place for performance
-Promise should be made in that manner and at
that time
Failure to perform at fixed time
When time is essential
The time is essential to a contract if the intention of parties (expressed or implied) was that time
should be of essence of the contract.
–Time is essential.
▪ Voidable at the option of promisee
▪ He may rescind the contract and sue for the breach caused by non-performance
▪ He can also accept performance, but then, promisee cannot claim compensation for any loss due to non-performance of the promise at the time agreed (unless, at the time of acceptance he gives notice to promisor of his such intention)
–Time is not essential
▪ Not Voidable at the option of promise
▪ But promisee is entitled to compensation
from promisor for any loss occasioned to
him by such failure
Reciprocal Promises
The Promises which form the consideration or part of the consideration for each other.
Simultaneous performance
When contract consists of reciprocal promises to be simultaneously performed, promisor need
not perform his promise unless promisee is ready and willing to perform his promise
Order of performance
▪ Where order in which reciprocal promises are to be performed is expressly fixed by the
contract, they must be performed in that order
▪ If not fixed, they must be performed in the order which the nature of transaction requires
Preventing the performance
When one party prevents the other from performing his promise, contract becomes voidable at
the option of the party so prevented; and he is entitled to compensation from other party for
any loss which he may sustain in consequence of the non-performance of the contract.
Non-performance in dependent reciprocal promises (one is dependent on other)
Where the party who is liable to perform first, fails to perform it, then such party cannot claim
the performance from the other party and must make compensation to the other party for any
loss which the other party may sustain by the non-performance of the contract.
Promise to do legal and illegal things
Where persons reciprocally promise, firstly, to do certain legal things, and secondly, to do
certain illegal things, the first set of promises is a contract, but the second is a void agreement.
Alternative promise, one branch being illegal
In the case of an alternative promise, one branch of which is legal and the other illegal, the legal
branch alone can be enforced.
