Ans.
BY WHOM MUST A CONTRACT BE PERFORMED?
[SECS. 40 & 41]
By promisor himself :If that was the
intention of the parties, i.e. where personal consideration is the foundation
of the contract. (Sec. 40)
By agent :Where personal consideration
is not the foundation of contract, a person can perform his obligations through
an agent. (Sec. 40)
By legal representatives :In case of death of the
promisor, the legal successors are bound to perform the contract, unless the
contract is of personal nature.
By joint promisors : When
two or more persons have made a joint promise, then unless a contrary intention
appears from the contract,
a.
all such persons must jointly fulfil the promise.
b.
If any of them dies, his legal representative must, jointly with the surviving
promisors, fulfil the promise.
c.
If all the promisors die, the legal representatives of all of them must fulfil
the promise jointly.
Performance by third person : When
a promisee accepts a performance of the promise from a third person, he cannot
afterwards enforce it against the promisor. (Sec. 41) Acceptance of performance
from a third party involves waiver of right of performance by the promisor.
According to the Calcutta High Court a consignee after receiving compensation
for the loss from an insurer cannot again sue the carrier who was actually
liable for causing the loss of goods in transit.
Who can demand performance?
The promisee : The
promise, i.e., the person who was given the promise, can demand performance.
The agent : The
agent can also demand performance on behalf of the promisee.
The legal representative : In
case of death of the promise before performance, his legal representative, can
demand performance.
Performance of joint promises : When a person has made a promise to
several persons, then, unless a contrary intention appears from the contract,
the right to claim performance rests with all of them. When one of the promisee
dies, it rests with his legal representatives jointly with the surviving
promisees. When all the promises die, it rests with their legal representatives
jointly.
