Ans.ACTUAL PERFORMANCE & ATTEMPTED PERFORMANCE
Performance may be: (a)
Actual performance; or (b) Attempted performance or Tender.
(A) Actual Performance
When each party to a
contract fulfils his obligation arising under the contract within the time and
in the manner prescribed, it amounts to actual performance of the contract and
the contract comes to an end or stands discharged.
(B) Attempted Performance or Tender
When the promisor offers to
perform his obligation under the contract, but is unable to do so because the
promisee does not accept the performance, it is called "attempted
performance" or “tender”. Thus, “tender” is not actual performance but is
only an "offer to perform” the obligation under the contract. A valid
tender of performance is equivalent to performance.
ESSENTIALS OF A VALID TENDER
A valid tender or offer of
performance must fulfil the following conditions: (Sec. 38)
1. It must-be
unconditional. (A tender is conditional where it is not in accordance with the
term of the contract).
2. It must be made at
proper time and place.
3. It must be of the whole
obligation contracted for and not only of the part.
4. If the offer/tender
relates to delivery of goods, it must give a reasonable opportunity to the
promisee for inspection of goods so that he may be sure that the goods tendered
are of contract description.
5. It must be made by a
person who is in a position and is willing to perform the promise.
6. It must be made to the
proper person i.e., the promisee or his duly authorised agent Tender made to a
stranger is invalid.
7. If there are several
joint promisees, an offer to any one of them is a valid tender.
8. In case of tender of
money, exact amount should be tendered in the legal tender money.
Exception:
If a debtor has properly
offered to pay money, and the creditor refuses to accept payment, the debtor’s
liability to pay shall not come to an end. However, he will get one relief
starting from the date of rejection of the tender. He will not be liable to pay
interest on the due amount from the date of rejection.
