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Unit 5: Discharge of Contract

with himself to the performance of the promise, unless a contrary intention appears from the Notes
contract. If any one of the joint promisors makes default in such contribution, the remaining joint
promisors must bear the loss arising from such default in equal shares.

Example: (i) A, B and C are under a joint promise to pay D ` 3,000. A is compelled to pay
the whole amount of ` 3,000. A can recover ` 1,000 each from B and C.
(ii) A, B and C jointly promise to pay D a sum of ` 3,000. C is compelled to pay the whole amount

of ` 3,000. A is insolvent, but his assets are sufficient to pay ½ of his debts. C is entitled to receive
` 500 from A’s estate and ` 1,250 from B.
(iii) A, B and C are under a joint promise to pay D ` 3,000. C is unable to pay anything and A is
compelled to pay the whole amount of ` 3,000. A is entitled to receive ` 1,500 from B.
Release of joint promisor. Where two or more persons have made a joint promise, a release of one
of such joint promisors by the promisee does not discharge the other joint promisor or promisors,
neither does it free him from the responsibility to the other joint promisor or promisors [s. 44].
Devolution of joint rights (s. 45). When a person has made a promise to two or more persons
jointly, then unless a contrary intention appears from the contract, the right to claim performance
rests with all the joint promisees and after the death of any of them, with the representatives of
such deceased promisee jointly with the survivor or survivors; and after the death of the survivors
also, with the representatives of all jointly. Thus, unlike the case of joint promisors whose liability
is joint as well as several, the right of the promisees is only joint and thus any one of them cannot
enforce performance unless so agreed.

Example: A, in consideration of ` 5,000 lent to him by B and C, promises B and C jointly to
repay them that sum with interest on a day specified. B dies. The right to claim performance rests

with B’s representative jointly with C during C’s life, and after C’s death with the representatives
of B and C jointly.

5.1.3 Contracts which need not be Performed

There are certain situations where contracts need not be performed. These are (i) The parties may
mutually agree to substitute the original contract by a new one or to rescind it or alter it. A owes
money to B under a contract. It is agreed between A, B and C that B shall henceforth accept C as
his debtor, instead of A. The old debt of A to B is at an end and a new debt from C to B has been
contracted. (ii) The promisee may dispense with or remit wholly or in part the performance of
the promise made to him or extend the time for such performance or accept any satisfaction for it.
For instance, A promises to paint a picture for B. Later, B forbids A to do so. A is no longer bound
to perform the promise. Or C owes D ` 5,000. C pays D ` 2,000 and D accepts it in satisfaction of
his claim on C. This payment is a discharge of the whole claim. (iii) The person at whose option
the contract is voidable because of undue influence, coercion, fraud or misrepresentation can

rescind it. (iv) The promisee neglects or refuses to afford the promisor reasonable facilities for the
performance of his promise. For instance, A contracts with B to repair B’s house. B neglects or
refuses to point out to A the places in which his house requires repair. A need not perform.

Task Discuss Performance Contract by providing relevant examples.

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