By Whom a Contract Must Be Performed

In one line

Most promises can be kept by anyone competent, some can only be kept by the promisor himself, and a promisee who accepts performance from someone else cannot afterwards go back to the promisor.

In the words a student can write in an exam: section 40 of the Indian Contract Act 1872 provides that "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 cases, the promisor or his representatives may employ a competent person to perform it." Section 41 provides that "When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor."

Why these two sections sit together

Section 37 says the parties must perform. It does not say by whose hands.

For most contracts the question does not matter. A buyer who has contracted for a hundred bags of cement cares that they arrive, not who carries them. For some contracts it matters entirely: a client who has retained a particular advocate has not agreed to be represented by whoever that advocate sends.

Section 40 sorts contracts into those two classes. Section 41 then deals with the practical consequence of the sorting going the promisee's way: if a stranger performs and the promisee takes the performance, that is the end of it.

The provisions

Section 40:

"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 cases, the promisor or his representatives may employ a competent person to perform it."

Its 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 the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.

(b) A promises to paint a picture for B. A must perform this promise personally."

Section 41:

"When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor."

Broken down

Section 40: the test, and the default

The test is what appears from the nature of the case to have been the intention of the parties. Not what the promisor would prefer, and not what is convenient. Two questions answer it in practice.