SECTION 37 to 45

   Contract  act 

Chapter 4 ---of the performance of contract 

Contract which must be performed 

Obligation of parties to the contract ----

The parties to a contract must either perform or offer to perform their respective promises unless such performance is dispensed with or excused under the provisions of this act or of any other law .

Promises bind the representative of the promisor in the case of the death of such promisors ,before the performance unless a contrary intention appears from the contract.

Illustrations 

a.A promises to deliver goods to B on a certain day on payment of rs .1000 .A dies before that day .A 's representative are bound to deliver the goods to B  and B is bound to pay the rs.1000 to A's representative .

b.A promises to paint a picture  for B by a certain day ,at certain price .A dies before the day .the contract cannot be performed 

Section 38 .effect of refusal to accept offer of performance ---where a promisor has made an offer of performance to the promisee and the offer has not been accepted the promisor is not responsible for non performance nor does he there lose his right under the contract 

Every such offer must fulfil the following conditions ---

1.it must be unconditional 

2.it must be made at a proper time and place and 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 there and then to do the whole of what is bound by his promise to do .

3.if the offer is an offer to deliver any thing to the promisee the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver 

 An offer to one of several joint promisees has the same legal consequences as an offer to all of them.

Illustrations 

A contracts to deliver to B at his warehouse on the first March 1873 ,100 bales of cotton of a particular quality in order to made an offer of performance with the effect stated in this section.A must bring the cotton to B 's warehouse on the appointed day under such circumstances that B may have a reasonable opportunity of satisfying himself that the things offered is cotton of the quality contracted for and that there are 100 bales .

Section 39 effect of refusal of party to perform promise wholly ----

When a party to a contract has refused to perform or disabled himself from performing his promise in its entirety the promise may put an end to the contract unless he has sinified by words or conduct his acquiescence in its continuance .

Illustrations 

a.A ,a singer enters into a contract with B the manager of a theatre to sing at his theatre two night in every week during the next two month and B engages to pay her 100 rupees for each night's performance.on the sixth night A wilfully absent herself from the theatre .B is at liberty to put an end to the contract ..

b.A a singer enters into a contract with B the manager of a theatre two nights in every week during the next two month and B engages to pay her at the sixth night .A wilfully absent herself .with the assent of B .A signs on the seventh night .B has dignified his acquiescence in the continuance of the contract and cannot now put an end to it but is entitled to compensation for the damages sustained by him though A 's failure on the sixth night 

By whom contract must be performed 

Section 40.person by whom promise is to be performed ------

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 case the promisor or his representative may employ a competent person to perform it .

Illustrations 

a.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 time appointed for payment his representative must perform the promise or employ some proper person to do so .

b.A promise to paint a picture for B .A must perform this promise personally .

  Section 41 .effect of accepting performance from third person. He cannot afterwards enforce it against the promisor 

Section 42 . Devolution of  liabilities ----

When two or more persons have made a joint promise then unless a contrary intention appears by the contract all such persons during their joint lives and after the death of any of them his representative jointly with the survior or survivors and after the death of the last survivor the representative of the last survivor the representative of all jointly must fulfil the promise 

Section 43.any one of joint promisors may be compelled to perform -----

When two or more persons  make a joint promise the promisee may in the absence of express agreement to the contrary compel any more or more of  such joint promisors to perform the whole of the promise .

Each promisor may compel contribution ----

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 intention appears from the contract .

Sharing of loss by default in contribution -----

If any one 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 .

Explanation ---nothing in this section shall prevent a surety from recovering from his principal payments made by the surety on behalf of the Principal or entitle the principal to recover anything from the surety on account of payments made the principal.

Illustrations 

a.A,B and C jointly promise to pay D 3000 rupees D may compel either A or B or C to pay him 3000 rupees .

b.A ,B and C jointly promise to pay D the sum of 3000 rupees .C is compelled to pay the whole .A is insolvent but his asset are sufficient to pay one half of his debt .c is entitled to receive 500 rupees from A 's estate  and 1250 rupees from B .

C.A,B and C are under a joint promise to pay D 3000 rupees .c is unable to pay anything and A to compelled to pay the whole .A is entitled to receive 1500 rupees from B .

d .A ,B and C are under a joint promise to pay D 3000 rupees.A and B being only sureties for C .c fails to pay .A and B are compelled to pay the whole sum.they are entitled to recover it from C.

Section 44.effect of release of one joint promisor----

Where two or more persons have made a joint promise a release of one of such joint promisors by the promisee does not discharge the other joint promisor neither does it free the joint promisors neither does it free the joint promisors so released from responsibility to the other joint promisor or joint promisors.

Section 45 devolution of joint rights ---when a person has made a promise to two or more persons jointly then unless a contrary intention appears from the contract the right to claim performance rests as between him and them with them during their joint lives and after the death of any of them with the representative of such deceased person jointly with survivor or survivors and after the death of last survivor with the representative of all jointly .

Illustrations 

A in consideration of 5000 rupees lent to him by B and C promises B and C jointly to reply them that sum with interest on a day specified B dies .the right to claim performance rests with after B's representative jointly with C during C 's life and after the death of C with the representative of B and C jointly .