BY WHOM SHOULD THE CONTRACT BE PERFORMED

 

BY WHOM SHOULD THE CONTRACT BE PERFORMED

Performance on the death of a party

Section 37 Para 2: If a party to the contract dies before he has performed the contract that, by itself, does not put an end to the obligation to perform the same. Promisees bind the representatives of the promisors in case of the death of such promisors before performance, unless contrary intention appears from the contract. For example, A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before that day. A's representatives are bound to deliver the goods to B and B is bound to pay Rs. 1,000 to A's representatives.

If the performance of the contract requires personal skill, or the contract is based on the personal confidence between the parties, there is a presumption that the contract should be performed personally by the parties themselves. Such a contract cannot be enforced against the representatives of the deceased party. For example, A promises to paint a picture for B by a certain day at a certain price. A dies before the day. The contract cannot be enforced either by A's representatives or by B.

Performance by the promisor or his agent

Whether only the promisor can perform the contract himself, or it can be performed through an agent also, may be the question arising in some cases.

Section 40 of the Contract Act makes the following provision in this regard:

"If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the 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." It means that if the contract is one which is based on personal confidence, or involves the exercise of personal skill, like painting, dancing, singing, marrying or writing a book, etc., it would be apparent that the intention of the parties is that it should be performed by the promisor himself and nobody else. Therefore, if A promises to paint a picture for B, A must perform this promise personally.

If, on the other hand, the contract is not of a kind stated above, it does not involve the exercise of personal skill, the promisor or his representatives may employ a competent person to perform the same.

For instance, A promises to pay B a sum of money. A may perform this promise either by personally paying the money to B or by causing it to be paid to B by another, and if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.

It has already been noted above that when the contract is based on personal confidence and skill and the promisor dies before performing the same, the contract comes to an end thereby and the representatives of the promisor are not bound to perform the contract. contracts of non-personal nature, e.g., involving the payment of money, the representatives of the promisors can be required to perform the contract.'

There is nothing which prevents the promisee from accepting the performance of the contract from a person other than the promisor. When the promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor. By agreeing to the performance by a third person, the promisee is deemed to have waived his right of getting the performance personally the promisor.

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