This article is written by Bharti Kumari, B.A.LL.B,School of Law, Presidency University during her internship with Le Droit India.
Introduction
It is founded on the notion of ‘qui facit per alium facit per se’, which means, “He is considered by law to do it alone who does an act through another.” Therefore, both the individual, at whose direction the act is executed and the person who executes the act are answerable in a case of vicarious liability. Companies are also vicariously answerable for the wrongdoing of their workers performed mostly during period of jobs . Vicarious liability refers to a legal concept that defines the statutory obligation that may exist in one person for harm. This literally involves actions, even though one is not that person who caused the destruction specifically. Vicarious liability, often referred to as ascribed responsibility, claims that even if the behavior cause damage to the other individual, anybody who is in an official legal arrangement with however yet another person is probably answerable.
The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Master’s liability for the tort of his servant.
In this regard, Vicarious Liability has been considered to be cases wherein one man is responsible for the act of other men. Under the heading of Torts, it is treated as an exception to the general rule that a man is liable only for his own actions.
Time and Place of Performance of Contract
As much as a promisor and promise are constituent parts of a contract, so are time and place of its performance. When the parties have agreed upon a specific time and place for the performance of the contract, the promisor is obliged to perform the promise at that time and place. But if no such place or time is agreed upon, then it should be performed in some reasonable place and at some reasonable time. Indian Contract Act, 1872 Certain rules as to time and place for performance of a contract are specified under sections 46 – 50.
Time and Place of Performance of Contract
When no application to be made and no time specified (Section 46)
Consider this: suppose a contract had to come into being where the promisor was under an obligation to perform his promise without any application of the promisee. It was one of those contracts in which no time was specified for the performance of the same. In that situation, the promisor should perform the contract at a reasonable time.
Although it connotes different meanings, it is in this section that it is made clear that in each case, it is the circumstances of the case that will determine what ‘reasonable’ is to the parties concerned.
Example: Peter agrees to pay John in cash at his house within six months as payment of the loan he had taken from John. Peter goes to work at six in the morning when John returns from his night shift work. Considering the facts, it can be noted that the only time available for the meeting of both Peter and John is at six in the morning. Therefore, the time and the location to perform the contract are 6 a.m. at John’s residence .
No Application to be made but Time is Specified (Section 47)
performance of contract
Where there is a contract which lays down that no application shall be required by the promisee but the promisor shall perform the contract only on a Sunday, in that case promisor can perform the promise during ordinary business hours, unless the time is also specified in the contract.
Example: Peter agrees to provide some commodities to John after receiving a demand draft for Rs 5,000. John delivers the demand draft and directs Peter to provide the commodities at Sunday. Here, since time is not specified, between 9 am and 6 pm it shall be delivered in this case assuming the aforesaid hours are the regular hours of business in the place they reside.
If Peter tries to deliver after business hours, then John has the right not to accept the goods and ask Peter to deliver again during business hours.
Application by the Promisee required (Section 48)
Suppose a contract is such that the promisee has necessarily to apply for the performance of a contract. In such a case, the promisee needs to ensure that the application is made at proper place and time. Here again depending upon the case, the expression ‘proper place and time’ would carry different meanings.
For instance, Peter and John enter into a contract whereby Peter undertakes an obligation to get John’s car repaired whenever John requests him to do so. Peter, on the other hand, accepts an advance payment for the same. When John requests Peter to get his car repaired, he has to make sure that he does not send Peter on too much of an errand. Also, he must prefer getting it repaired during business hours.
No Application to be made but the Place of Performance is not Specified (Section 49)
Let us consider a contract where the promisee is not liable to make an application for the performance of the contract. Also, the place of performance is not specified. In such a case, it becomes the duty of the promisor to make an application to the promisee asking him to fix a reasonable place for the performance of the promise.
Example: Peter agrees to deliver 5 television sets to John on a specific day and hour. However, there is no address in the contract. It is the role of Peter to apply to John and ask him to appoint a reasonable place where he can safely receive the delivery of the goods.
Performance as prescribed by the Promisee (Section 50)
There can also be a contract whereby the promisor undertakes or agrees to perform the promise in a manner and at a place and time prescribed or sanctioned by the promisee.
Example: John’s son is admitted to hospital. He wants money for his son’s operation. Peter owes money to John and he agrees to pay the same in cash/cheque at any place or at any time at which John should choose. Here, John is free to insist upon the performance of the promise in any way and at any place suited to himself .
Discharge by Performance
It means doing all those things that are expected by a contract. The discharge of performance is said to have taken place when parties to the contract fulfill the obligation set forth under the contract within the time specified and in the manner prescribed. In this case, both the parties are relieved and the contracts come to an end. However if one party performs he alone is discharged. Such a party obtains the right of action against the other party who is liable. Discharge of Performance may be:
• Actual Performance
• Attempted Performance
Actual Performance
If both the parties perform their performance, then the contract is said to be discharged. Performance needs to be complete and accurate based on the terms of the agreement. The majority of the contracts are discharged by performance in this manner.
Attempted Performance
Attempted performance is nothing but an offer to perform the obligation under the contract. If the promisor agrees to do the contract, but the promisee refuses to accept the performance, then in such case, it is termed as discharge of contract by attempted performance or tender.
Discharge by Agreement or Consent
Novation
The term novation means the substitution of the new contract by the original one. The new contract can be with either the same entities or the new entities. For the validity and effectiveness of a contract, assent of all parties including the new one if there is one should take place. Further, the second party should be capable of law enforcement, and the consideration for the same is the exchange of promise not to perform the original contract.
Alteration
This refers to alteration of one or more terms of a contract due to the consent of all parties entered in the contract. Alteration gives rise to new contracts but the parties to it remain the same.
Remission
This will imply acceptance by the promisee of a lesser sum than what was mentioned in the contract, or a lesser fulfillment of the promise made. According to section 63, every promise may:
• May remit or give up with it.
• Extend the performance time.
• Accept any other satisfaction rather than performance .
Breach of contract and remedies:When either of the parties fail to keep or act on his promise or agreement, we call it breach of contract. Therefore when either of the parties do not keep his end of the bargain or are not fulfilling their obligation as per the terms of the contract, it is breach of contract. There are a few remedies available for breach of contract for the wronged party. Let us take a glance at that.
1.Rescission of Contract If one party to the contract fails to perform his obligations, then the other party can cancel the contract and decline the performance of his obligation.
According to section 65 of the Indian Contract Act, the party rescinding the contract is obligated to restore any benefit he had fetched under the said agreement. According to section 75, the party rescinding the contract is also liable to receive damages and/or compensation for such a recession.
2.Sue for Damages
Section 73 clearly lays down that since the other party has reneged on his promise, the suffering party is entitled to claim compensation for loss or damages caused to them in the normal course of business. Such damages would not be recoverable if the loss is abnormal in nature, i.e. not in the ordinary course of business. The Act bifurcates into two types of damages.
Liquidated Damages: Sometimes, the parties agree on the amount payable in case of a breach. This is called liquidated damages.
Unliquidated Damages: The amount payable due to breach of contract is determined by courts or any appropriate authorities.
5.Quantum Meruit
Basically, quantum meruit is a Latin word that translates to “as much is earned”. Sometimes, the party to the contract prevented from completing his performance of the contract by the other party can claim quantum meruit.Therefore, he has to be recompensed fair remuneration for the portion of the contract that he has already performed. It can either be the remuneration of the services provided or the value of the work already done .
