Discharge and performance of contractDischarge and performance of contract

Performance may bePerformance may beii--Actual performanceActual performance--When both the When both the parties perform their respective promises, a parties perform their respective promises, a contract is said to have been actually contract is said to have been actually performedperformediiii--Attempted performanceAttempted performance--offer to perform offer to perform may be called Attempted performancemay be called Attempted performance

Offer to perform is called Offer to perform is called ‘‘ Tender of Tender of PerformancePerformance’’

11-- Tender must be unconditionalTender must be unconditional22--tender must be made at a proper time and tender must be made at a proper time and placeplace33--Tender must be made under such Tender must be made under such circumstances that the person to whom it is circumstances that the person to whom it is made may have a reasonable opportunity of made may have a reasonable opportunity of ascertaining that the person by whom it is ascertaining that the person by whom it is made is able and willing to fulfill the whole of made is able and willing to fulfill the whole of promisepromise

44--If the offer is an offer to deliver anything to If the offer is an offer to deliver anything to the promisee,the promisee must have a the promisee,the promisee must have a reasonable opportunity of seeing that the reasonable opportunity of seeing that the thing offered is the thing which the promisor thing offered is the thing which the promisor is bound to deliveris bound to deliver55-- The Tender must be whole and not only The Tender must be whole and not only the partthe part66--Tender must be made to the promisee or Tender must be made to the promisee or his duly authorized agenthis duly authorized agent77--Tender made to one of several promises Tender made to one of several promises has the same effect as a tender to all of has the same effect as a tender to all of

88--If any promisee neglects or refuses to If any promisee neglects or refuses to afford the promisor reasonable facilities for afford the promisor reasonable facilities for the performance of the promiseethe performance of the promisee99--The Tender must be in proper formThe Tender must be in proper form1010--The party making a Tender must be The party making a Tender must be ready and willing to fulfill the obligation ready and willing to fulfill the obligation whenever called uponwhenever called upon1111--A mere offer by post to pay the amount A mere offer by post to pay the amount is not a valid tenderis not a valid tender1212--A Tender may either be Tender of goods A Tender may either be Tender of goods or tender of moneyor tender of money

11--PromiseePromisee--A third party can not demand A third party can not demand the performancethe performance22--Legal RepresentativeLegal Representative--In the case of In the case of death of promisee , the Legal representative death of promisee , the Legal representative can demand performancecan demand performance33--Joint PromiseesJoint Promisees ––When a person has When a person has made a promise to two or more personsmade a promise to two or more persons44--Third PartyThird Party--A third party can demand A third party can demand performance of contract in certain casesperformance of contract in certain cases

11--By the PartiesBy the Parties--As per section 37 of the As per section 37 of the ActAct22--PromisorPromisor--As per section 40 of the ActAs per section 40 of the Act33--RepresentativesRepresentatives--As per section 37As per section 3744--AgentAgent--As per section 40As per section 4055--Third personThird person--As per section 41As per section 41

11-- Where no time is specifiedWhere no time is specified22--When time is specifiedWhen time is specified33--On application for performance by On application for performance by promiseepromisee

11--Mutual and DependentMutual and Dependent--Performance of Performance of one party depends upon the prior one party depends upon the prior performance of other partyperformance of other party22--Mutual and IndependentMutual and Independent--each party each party must perform independentlymust perform independently33--Mutual and ConcurrentMutual and Concurrent--Promise has to Promise has to be performed simultaneously.be performed simultaneously.

11--Express appropriation by DebtorExpress appropriation by Debtor22--Implied appropriation by debtorImplied appropriation by debtor33--Principal and Interest when both are duePrincipal and Interest when both are due44--Apporpriation by CreditorApporpriation by Creditor55--Apporpriation by Law Apporpriation by Law 66--The rule in re HallettThe rule in re Hallett’’s estates estate

ii--If the parties to a contract agree to If the parties to a contract agree to substitute a new contractsubstitute a new contractiiii-- Promisee may dispense with or remit Promisee may dispense with or remit wholly or part, the performance of a promise wholly or part, the performance of a promise made by himmade by himiiiiii--When a person at whose option a When a person at whose option a contract is voidable rescinds it.contract is voidable rescinds it.iviv--If any promisee neglects or refuses to If any promisee neglects or refuses to afford the promisor reasonable facilitiesafford the promisor reasonable facilities

vv--When a contract becomes void because When a contract becomes void because of supervening impossibility or illegalityof supervening impossibility or illegalityvivi--When a person has a right to rescind a When a person has a right to rescind a contractcontractviivii--When a promisor is excused by any other When a promisor is excused by any other lawlaw

ii--Novation or SubstitutionNovation or Substitution--Some new Some new contract got substitutedcontract got substitutediiii--AlterationAlteration--Change in terms of contractChange in terms of contractiiiiii-- RescissionRescission--If the parties agree to If the parties agree to rescind itrescind itiviv--RemissionRemission----Acceptance of lesser sum Acceptance of lesser sum compared to the original contractcompared to the original contractvv--WaiverWaiver--To dispense withTo dispense withvivi--MergerMerger--When superior right and inferior When superior right and inferior right coincideright coincide

11--InsolvencyInsolvency--The promisor is dischargedThe promisor is discharged22--MergerMerger--Extinguishesing the rightExtinguishesing the right33--DeathDeath--The death of the promisor The death of the promisor discharges the contractdischarges the contract44--Lapse of timeLapse of time--The Limitation Act 1963The Limitation Act 196355--Material alteration or unauthorized Material alteration or unauthorized alterationalteration--Change in one or more of the Change in one or more of the material terms of contractmaterial terms of contract

MeaningMeaning--According to Sec 56, impossibility According to Sec 56, impossibility of performance may fall into of performance may fall into ii--Impossibilty existing at the time of contract Impossibilty existing at the time of contract known as preknown as pre--contractual or initial contractual or initial impossibilityimpossibilityiiii--Subsequent or supervening impossibility Subsequent or supervening impossibility also known as postalso known as post-- contractual impossibilitycontractual impossibility

11--Destruction of the object necessary for the Destruction of the object necessary for the performance of the contractperformance of the contract22--Change of lawChange of law33--Personal incapacityPersonal incapacity44--Outbreak of warOutbreak of war

11--Difficulty of performanceDifficulty of performance22--Commercial ImpossibilityCommercial Impossibility33--Impossibilty due to the behavior of a third Impossibilty due to the behavior of a third partyparty44--Self induced impossibilitySelf induced impossibility55--Strikes, Lockouts ,and Civil disturbances Strikes, Lockouts ,and Civil disturbances 66--Partial impossibilityPartial impossibility77--Rights and obligations under a transfer of Rights and obligations under a transfer of property under a caseproperty under a case88--Temporary interruptio9Temporary interruptio9--Matters with the Matters with the contemplation of partiescontemplation of parties

11--Actual breach of contractActual breach of contract--At the time At the time when the performance id duewhen the performance id due22--Anticipatory Breach of contractAnticipatory Breach of contract--By By renunciationrenunciation

11--If the contracted is ended at onceIf the contracted is ended at once--The The amount of damages will be measured by the amount of damages will be measured by the difference between the prices prevailing on difference between the prices prevailing on the date of breachthe date of breach22--If the contract is kept alive till the date If the contract is kept alive till the date ofof performance of contractperformance of contract--Here the Here the damage will be on the date of performancedamage will be on the date of performance

11--Ordinary or general damagesOrdinary or general damages--Damages Damages parties are ought to knowparties are ought to know22--Special damagesSpecial damages--Resulting from breach Resulting from breach of contractof contract33--Exemplary damagesExemplary damages--Shows the CourtShows the Court’’s s disapprovaldisapproval44--Nominal damageNominal damagess-- Contemptuous Contemptuous damagesdamages

1 Reasonable and proportionate1 Reasonable and proportionate--The The amount involved amount involved 22--Fair and GenuineFair and Genuine--the damage is fair and the damage is fair and genuinegenuine33--ObjectObject--To secure compensationTo secure compensation44--Recovery through CourtRecovery through Court--Are permitted Are permitted by Courtby Court55--Court,s PowerCourt,s Power--Courts have no power to Courts have no power to increaseincrease \\decrease Liquidated damagesdecrease Liquidated damages

11--Reasonable and ProportionateReasonable and Proportionate--The The amount is reasonable amount is reasonable 22--Fair and GenuineFair and Genuine--The damage is fair The damage is fair estimateestimate33--ObjectObject--To secure compensationTo secure compensation44--Recoverable through CourtRecoverable through Court--Liquidated Liquidated Damages are permitted by CourtDamages are permitted by Court55--CourtCourt’’s Powers Power--CourtCourt’’s have no power to s have no power to reducereduce\\increase liquidated damagesincrease liquidated damages

II--In case of voidable contracts ( Sec 64 )In case of voidable contracts ( Sec 64 )--The contracts becomes voidableThe contracts becomes voidableiiii--In case of contract becoming void ( In case of contract becoming void ( Sec 65 )Sec 65 )--When an agreement is discovered When an agreement is discovered to be voidto be void

ii--Where monetary compensation is an Where monetary compensation is an adequate remedyadequate remedyiiii--Where the court cannot supervise the Where the court cannot supervise the execution of the contractexecution of the contractiiiiii--Where the contract is for personal serviceWhere the contract is for personal serviceiviv--Where one of the parties is incompetent Where one of the parties is incompetent to contractto contractvv-- Where the contract is ultra Where the contract is ultra viresvires

vivi-- Where the contract is made by Trustees Where the contract is made by Trustees in breach of trustin breach of trustviivii--Where a subject material part of the Where a subject material part of the subject matter of the contract has ceased to subject matter of the contract has ceased to existexistviiiviii--Where the contract is inequitable to Where the contract is inequitable to either partyeither party

11-- This right does not arise out of any This right does not arise out of any contract but it is of quasicontract but it is of quasi-- contractual naturecontractual nature22--This right arises out of some past This right arises out of some past performance a)performance a)-- some work is done)some work is done)--some some services are rendered.services are rendered.33--It is by nature It is by nature restitutoryrestitutory44--It arises when a quasiIt arises when a quasi-- contract is in contract is in existenceexistence

11--This right arises out of a contractThis right arises out of a contract22--This right arises when there is nonThis right arises when there is non--performanceperformance33--It is by nature compensatoryIt is by nature compensatory44--It arises only when a contract is brokenIt arises only when a contract is broken

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