Time and Place for Performance

Reasonable time is a question of fact, and the Explanation says so expressly. It depends on the nature of the goods or service, the usage of the trade, the conduct of the parties, and the circumstances. Perishables are not given the time that machinery is.

Section 47: a day is fixed, no application needed

"When a promise is to be performed on a certain day, and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed."

Its illustration is precise and is regularly set:

"A promises to deliver goods at B's warehouse on the first January. On that day A brings the goods to B's warehouse, but after the usual hour for closing it, and they are not received. A has not performed his promise."

Two things the illustration decides. Performing on the right day is not enough: it must be within the usual hours of business. And the promisor gets the whole of those hours, so a promisee cannot complain that delivery came late in the afternoon.

Section 48: a day is fixed, the promisee must apply

"When a promise is to be performed on a certain day, and the promisor has not undertaken to perform it without application by the promisee, it is the duty of the promisee to apply for performance at a proper place and within the usual hours of business."

The mirror image of section 47. The burden here is on the promisee, and a promisee who does not apply at a proper place and time cannot complain that the promisor did not perform.

Section 49: no place fixed

"When a promise is to be performed without application by the promisee, and no place is fixed for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise, and to perform it at such place."

Its illustration:

"A undertakes to deliver a thousand maunds of jute to B on a fixed day. A must apply to B to appoint a reasonable place for the purpose of receiving it, and must deliver it to him at such place."

Note where the burden falls. It is the promisor who must ask, and it is the promisee who names the place, which must be reasonable. A promisor who simply delivers somewhere of his own choosing has not performed.

Section 50: the promisee may prescribe or sanction

"The performance of any promise may be made in any manner, or at any time which the promisee prescribes or sanctions."

Its illustrations:

"(a) B owes A 2,000 rupees. A desires B to pay the amount to A's account with C, a banker. B, who also banks with C, orders the amount to be transferred from his account to A's credit, and this is done by C. Afterwards, and before A knows of the transfer, C fails. There has been a good payment by B.

(b) A and B are mutually indebted. A and B settle an account by setting off one item against another, and B pays A the balance found to be due from him upon such settlement. This amounts to a payment by A and B, respectively, of the sums which they owed to each other.

(c) A owes B 2,000 rupees. B accepts some of A's goods in reduction of the debt. The delivery of goods operates as a part payment.

(d) A desires B, who owes him Rs. 100, to send him a note for Rs. 100 by post. The debt is discharged as soon as B puts into the post a letter containing the note duly addressed to A."

The section is the promisee's power to vary, and illustrations (a) and (d) show why it matters: once the promisee has prescribed a manner of performance, the risk of that manner is his. The bank fails, or the post is lost, and the debtor is still discharged, because he did what he was told.

A worked example

Neeta contracts to deliver five hundred kilograms of turmeric to Omkar.

• The contract fixes no date and says nothing about Omkar asking for it. Section 46: within a reasonable time, a question of fact turning on the trade and the goods.
• The contract says 1 October, and Neeta is to deliver without being asked. She arrives at Omkar's godown at 8 pm, after closing. Section 47, and the illustration is exactly this. Delivery must be during the usual hours of business, so she has not performed.
• The same contract, and she arrives at 4.30 pm, near the end of the business day. She is within the usual hours, so she has performed. Omkar cannot complain that it was late in the day.
• The contract says 1 October but requires Omkar to apply for delivery, and he does not. Section 48 puts the duty on him to apply at a proper place within the usual hours. Neeta is not in breach.
• The contract fixes the date but names no place. Section 49: Neeta must apply to Omkar to appoint a reasonable place, and deliver there. If she simply sends the turmeric to a warehouse of her own choosing, she has not performed.
• Omkar tells Neeta to deliver instead to his customer in Pune, and she does. Section 50: performance may be made in any manner the promisee prescribes or sanctions. Good performance, and if the customer refuses to take it that is Omkar's problem.

What it does NOT mean

"Delivering on the right day is performance." Section 47's illustration says otherwise: after the usual hour for closing, the promise has not been performed.

"A reasonable time is a fixed period." The Explanation to section 46 makes it a question of fact in each case.

"The promisor may choose where to deliver if no place is fixed." Section 49 requires him to apply to the promisee to appoint a reasonable place.

"If the promisee must apply and does not, the promisor is in breach." Section 48 puts the duty to apply on the promisee.

"A payment made in the manner the creditor asked for is at the debtor's risk." Section 50, with illustrations (a) and (d), puts the risk on the creditor who prescribed it.

"These sections decide whether time is of the essence." They do not. That is section 55, and it decides a different question, namely what happens when the time fixed is missed. See [Time as the Essence of the Contract].

Quick revision

• s.46: no time fixed, no application needed, perform within a reasonable time; what is reasonable is a question of fact.
• s.47: day fixed, no application needed, perform on that day within the usual hours of business at the proper place. Illustration: goods brought after closing time are NOT performance.
• s.48: day fixed, application needed, the promisee must apply at a proper place within the usual hours of business.
• s.49: no place fixed, the promisor must apply to the promisee to appoint a reasonable place and perform there. Illustration: the thousand maunds of jute.
• s.50: performance may be in any manner or at any time the promisee prescribes or sanctions, and the risk of that manner is the promisee's: the banker who fails, and the note put in the post.
• These sections say when and where. s.55 says what happens if the time is missed.

Test yourself

1. Set out the rules on time for performance where the contract is silent. Under section 46, where the promisor is to perform without application by the promisee and no time is specified, performance must be within a reasonable time, and the Explanation makes what is reasonable a question of fact in each case. Where a day is fixed and no application is required, section 47 allows performance at any time during the usual hours of business on that day at the proper place.

2. A promises to deliver goods at B's warehouse on 1 January and arrives after closing. Has he performed? No. Section 47 requires performance during the usual hours of business on the day fixed, and the section's own illustration decides exactly this case: the goods brought to the warehouse after the usual hour for closing, and not received, do not amount to performance of the promise.

3. Who must fix the place of performance when the contract does not? Section 49 puts the first step on the promisor: where performance is to be made without application by the promisee and no place is fixed, it is the promisor's duty to apply to the promisee to appoint a reasonable place, and then to perform there. The promisee names the place and it must be reasonable.

4. What is the effect of section 50? Performance may be made in any manner, or at any time, which the promisee prescribes or sanctions. The practical consequence is that the risk of the prescribed method falls on the promisee: illustration (a) treats a transfer through a banker who later fails as a good payment, and illustration (d) discharges a debt as soon as the note is put in the post as the creditor directed.

5. Distinguish sections 46 to 50 from section 55. Sections 46 to 50 supply the default rules for when and where a promise must be performed where the contract does not say. Section 55 addresses a different question: what follows if the time fixed is not kept, that is whether time was of the essence, so that the contract becomes voidable, or whether the promisee is confined to compensation.