Discharge and Performance of Contracts

Discharge and performance of contract

Performance may be
i-Actual performance-When both the
parties perform their respective promises, a
contract is said to have been actually
performed
ii-Attempted performance-offer to perform
may be called Attempted performance

Offer to perform is called ‘ Tender of

1- Tender must be unconditional
2-tender must be made at a proper time and
place
3-Tender must be made under such
circumstances that the person to whom it is
made may have a reasonable opportunity of
ascertaining that the person by whom it is
made is able and willing to fulfill the whole of
promise

4-If the offer is an offer to deliver anything to
the promisee,the promisee must have a
reasonable opportunity of seeing that the
thing offered is the thing which the promisor
is bound to deliver
5- The Tender must be whole and not only
the part
6-Tender must be made to the promisee or
his duly authorized agent
7-Tender made to one of several promises
has the same effect as a tender to all of

8-If any promisee neglects or refuses to
afford the promisor reasonable facilities for
the performance of the promisee
9-The Tender must be in proper form
10-The party making a Tender must be
ready and willing to fulfill the obligation
whenever called upon
11-A mere offer by post to pay the amount
is not a valid tender
12-A Tender may either be Tender of goods

1-Promisee-A third party can not demand
the performance
2-Legal Representative-In the case of
death of promisee , the Legal representative
can demand performance
3-Joint Promisees –When a person has
made a promise to two or more persons
4-Third Party-A third party can demand

1-By the Parties-As per section 37 of the
Act
2-Promisor-As per section 40 of the Act
3-Representatives-As per section 37
4-Agent-As per section 40
5-Third person-As per section 41

1- Where no time is specified
2-When time is specified
3-On application for performance by
promisee

1-Mutual and Dependent-Performance of
one party depends upon the prior
performance of other party
2-Mutual and Independent-each party
must perform independently
3-Mutual and Concurrent-Promise has to
be performed simultaneously.

1-Express appropriation by Debtor
2-Implied appropriation by debtor
3-Principal and Interest when both are due
4-Apporpriation by Creditor
5-Apporpriation by Law
6-The rule in re Hallett’s estate

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

v-When a contract becomes void because
of supervening impossibility or illegality
vi-When a person has a right to rescind a
contract
vii-When a promisor is excused by any other
law

i-Novation or Substitution-Some new
contract got substituted
ii-Alteration-Change in terms of contract
iii- Rescission-If the parties agree to
rescind it
iv-Remission--Acceptance of lesser sum
compared to the original contract
v-Waiver-To dispense with
vi-Merger-When superior right and inferior

1-Insolvency-The promisor is discharged
2-Merger-Extinguishesing the right
3-Death-The death of the promisor
discharges the contract
4-Lapse of time-The Limitation Act 1963
5-Material alteration or unauthorized
alteration-Change in one or more of the
material terms of contract

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

1-Destruction of the object necessary for the
performance of the contract
2-Change of law
3-Personal incapacity
4-Outbreak of war

1-Difficulty of performance
2-Commercial Impossibility
3-Impossibilty due to the behavior of a third
party
4-Self induced impossibility
5-Strikes, Lockouts ,and Civil disturbances
6-Partial impossibility
7-Rights and obligations under a transfer of
property under a case
8-Temporary interruptio9-Matters with the
contemplation of parties

1-Actual breach of contract-At the time
when the performance id due
2-Anticipatory Breach of contract-By
renunciation

1-If the contracted is ended at once-The
amount of damages will be measured by the
difference between the prices prevailing on
the date of breach
2-If the contract is kept alive till the date
of performance of contract-Here the
damage will be on the date of performance

1-Ordinary or general damages-Damages
parties are ought to know
2-Special damages-Resulting from breach
of contract
3-Exemplary damages-Shows the Court’s
disapproval
4-Nominal damages- Contemptuous
damages

1 Reasonable and proportionate-The
amount involved
2-Fair and Genuine-the damage is fair and
genuine
3-Object-To secure compensation
4-Recovery through Court-Are permitted
by Court
5-Court,s Power-Courts have no power to

1-Reasonable and Proportionate-The
amount is reasonable
2-Fair and Genuine-The damage is fair
estimate
3-Object-To secure compensation
4-Recoverable through Court-Liquidated
Damages are permitted by Court
5-Court’s Power-Court’s have no power to

I-In case of voidable contracts ( Sec 64 )-
The contracts becomes voidable
ii-In case of contract becoming void (
Sec 65 )-When an agreement is discovered
to be void

i-Where monetary compensation is an
adequate remedy
ii-Where the court cannot supervise the
execution of the contract
iii-Where the contract is for personal service
iv-Where one of the parties is incompetent
to contract
v- Where the contract is ultra vires

vi- Where the contract is made by Trustees
in breach of trust
vii-Where a subject material part of the
subject matter of the contract has ceased to
exist
viii-Where the contract is inequitable to
either party

1- This right does not arise out of any
contract but it is of quasi- contractual nature
2-This right arises out of some past
performance a)- some work is done)-some
services are rendered.
3-It is by nature restitutory
4-It arises when a quasi- contract is in
existence

1-This right arises out of a contract
2-This right arises when there is non-
performance
3-It is by nature compensatory
4-It arises only when a contract is broken

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