Obligation of parties to contract | 'A' promises to paint a picture for 'B' by a certain day at a certain price 'A' died before the day. Whether the contract can be enforced against A’s representatives?

Question: Obligation of parties to contract | A promises to paint a picture for B by a certain day at a certain price A died before the day. Whether the contract can be enforced against A’s representatives? [HJS 1984]

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Answer

Section 37 of the Indian Contract Act, 1872 lays down provision regarding the obligation of parties to contract. It states, “The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.”

The proviso to the section says that a promise binds the representatives of the promisors in case of his death, unless a contrary intention appears from the contract.

However, A contract that is such that the promisor must perform it in person, viz involving personal considerations or personal skill or qualifications (such as his credit), are not assignable. The benefit of a contract is assignable in cases where it can make no difference to the person on whom the obligation lies to which of two persons he is to discharge it.

If the contract involves the exercise of individual skill or taste of the promisor, or depends upon the competency or personal qualification of the promisor, or is otherwise founded on special personal confidence between the parties, the promisor has to perform the promise himself, and not by a representative.

This has been considered an extreme application of the principle, which ought to be applied only where the contract really and substantially has relation to the personal conduct of the contracting party.

Where a person contracts with another to do work or perform service and it can be inferred that the person employed has been selected with reference to individual skill, competency, or other personal qualifications, the inability or unwillingness of the party so employed, is a sufficient answer to any demand by a stranger to the contract of the performance of it by the other party, and entitles the latter to treat the contract at an end.

Thus, in the present case at hand in which ‘A’ promises to paint a picture for ‘B’ by a certain day, at a certain price and ‘A’ dies before the day. The contract cannot be enforced either by A’s representatives or by ‘B’ because it is a contract involving the personal skill of the promisor which after his death cannot be enforced against A’s representatives.

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Law of Contract Mains Questions Series: Important Questions for Judiciary, APO & University Exams

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