In a case[lvii] wherein there was a contract for sale of a property contingent on the court sanctioning it; when the court refused to sanction the sale, the contract was held to have become void. Revise With the concepts to understand better. of the Indian Contract Act, 1872. [li], Appropriation by creditor- If the debtor makes payment without any appropriation, the creditor may use the payment at his discretion to wipe out any debt which he is due. Of the lender of money. Often a party’s offer or attempt to perform is sufficient to satisfy the condition of performance and obligate the other party’s performance. These decisions led to differentiation between the two principles, the principle of sanctity of contract which supports the principle of absolute liability and the principle of absolute liability and the principle that a contract be discharged when the shared contractual assumption has been destroyed by change of circumstances. It is a conditional tender and therefore it is invalid. In such cases, it is called attempted performance or tender. Promises bind the representatives of the promisor, The proviso attached to Section 37 of the Act provides that in case of the death of the promisors the representative of such promisors would be bound by the promises made by them unless a contrary intention appears from the terms of the contract. Example: Peter owes Rs 100,000 to John and agrees to repay it within one year. The promisor is not able to discharge his obligation or perform his duty because he is prevented by the promisee in doing so. According to the Section, there are two types of performance which are: Attempted performance is also known as Tender. And the court on finding that there was no such clause in the contract which laid emphasis on the essence of time held that the contractor still has to supply the goods. It was held that the promisee was within his right in rejecting cheque. This is just a commercial impossibility . The tender of performance must be unconditional. If the promisee fails to do so, then the promisor is discharged of all liabilities arising due to non-performance of the contract. According to English law, in a case where one of the several joint promisors dies. A tender may be of money or of specific articles; these will be separately considered. 61, Indian Contract Act, 1872, [liv] Braunstein v. Accidental Death Insurance Co., (1861) 121 ER 904, [lv] Chandulal v. It can be said that a tender of performance is equivalent to performance. Gender Neutrality: Rights of one, abrogation of another? 38(2), Indian Contract Act, 1872. of the Contract Act makes it clear that a tender of performance tantamounts to performance. The promisee has the authority to compel any of such joint promisors in the absence of the contract expressly prohibiting the promisee to do so. The tender must be made at a proper time and place, and under such circumstances that the … The court held that, the time so fixed was the essence of bargain. of the Contract Act contains provisions regarding the effect of acceptance of performance of promise by the third party. Each party to the contract is bound to perform promises according to the stipulated terms. This article is written by Shivangi Tiwari, a second-year student pursuing B.A. John’s act of remission discharges the contract. Then he may compel the other joint promisors to pay him the amount which they were obliged to pay to the person to whom they had promised to pay the stipulated amount. 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Sale transactions- the courts have to look into the facts of each case involving a transaction to determine whether the time factor was of essence or not. It is a conditional tender and therefore it is invalid. One has not to look at the letter but at the substance of the agreement in order to ascertain the real intention of the parties regarding the matter of time. In the case of Basanti Bai v. Prafulla Kumar Routral[iii],Cuttack High Court held that “if the contract is legal, and enforceable, then even if one of the parties to the contract dies leaving no legal heir, the persons, who acquire interest over the subject- matter of the contract through that deceased party would be bound by the contract and specific performance can be enforced against such persons.”, Offer of performance: this aspect is looked into under S.38 of the Indian Contract Act. He sold the factory to the defendant who paid half the price at once and was put in possession, the balance being payable on a fixed date.
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