PERSON BOUND TO PERFORM

Normally, a contract, in the absence of a contrary intention, express or implied, is enforceable by and against the parties there to. It is the absolute obligation of the promisor who have under taken responsibility to perform, therefore, the promisor is bound to perform the contract. The promisor is the party to whom the promisee has got trust and confidence the expectations or objectives of contract are achieved if it is performed by the promisor himself. This rule is not so strict that law in the different sets of circumstance makes liable to other persons to perform the contract and other person than the promisor can perform the contract. But where performance involves some personal qualification, for example, a contract to deliver lecture or sing the contract must be performed by the promisor himself. Section 74 of the Contract Act 2056, reads thus: “Each party to a contract shall fulfill his/her obligation under the contract.” In fact, the real realization of those expectations contemplated in the mind of the parties or purpose of the contract is possible if the contract is performed by the parties themselves. It is strictly applies to those contract which involves the personals skill, volition or diligence of the promisor. It refers, on the other hand. that where the performance of contract does not include such personal skill volition, diligence or trust and confidence, it is open that such can be performed by other person. Thus, Sub-section 1 of Section 77 lays down a common rule that the promisor may executed the contract by other persons but such can be done only with the consent of other party. Therefore, the other persons, than the promisor, who can perform the contract are:

1. Agent:

Where the performance of contract is not personal character and not under the obligation to execute the contract by himself, it can be performed by the agent or his representative or any other person on his behalf. The promisor or his representative may employ a competent person to perform it with the due consent of the other party.

2. Legal representatives: The person who has undertaken the liability must perform the contract, and incase of his death before performing it, his legal representatives will bound to perform the contract. But where a contract involves some personal qualifications the contact becomes discharged by impossibility in case of death or disablement and the legal representatives of the promisor will be under no liability to perform. For example:

a. A promises to pay B Rs. 5,000 for the supply of goods to him within 15 days from the delivery of goods. The goods are delivered but before making payment, A dies. A’s representatives/ hiers are bound to make payment to B and B is bound to deliver the goods to the A’s legal representatives.

b. A promises to B to provide plumbing services by a certain day at a certain price. A dies before that day. The contract cannot be enforced either by A’s representatives.

3. Third person: Section 77(2) provides that when a promise accepts a work done by a third party he cannot later claim that the work has to be done by the party signing the contract, i.e., the promisor.

4. Joint promisor:

In case where there are two or more promisors known as joint promisors and the promise is a joint promise and are bound to perform it together, i.e. jointly and not severally. The rule is that the performance of one discharges the others. And when one of them is issued alone, he will have a right to insist on the other being joined as co- defendants. And the party who has paid more than his share can proceed against his joint promisor and obtain from them contribution for any amount paid by him in excess of his share.