• Actual Performance
When a contract has been fulfilled by a promisor in accordance with the terms of the contract, the promise has been actually performed. Actual performance gives a discharge to the contract and the liability of the promisor comes to an end.
Example:- There’s a contract between Mr. A and Mr B. Where Mr. A promises Mr. B to deliver 10 kgs of mangoes at the Mr B’s house and Mr B promises to pay the price on delivery. Mr. A delivers the mangoes on the due date and at the specified location and then Mr. B makes the payment. This is actual performance.
Actual performance is subdivided into substantial performance, and partial Performance
• Substantial Performance
Substantial performance means the promisor has finished his performance of a contract upto an extent but a part of it remains. It is less than a complete performance but not a breach of contract. It completes all material duties but not all duties. Then the court implies a term that a substantially similar performance has to stand in for the performance specified in the contract. Substantial performance is applicable only if the contract is not an entire contract and is severable. The party who is claiming substantial performance must prove that he has attempted in good faith to perform his contract, but has through some mistake, misunderstanding or some other valid reasons failed to perform certain part of the contract. The reason behind creating the doctrine of substantial performance is to refrain the possibility of one party avoiding his liabilities by claiming that the contract has not been completely performed. However, the substantial performance will largely depend on what remains undone and its value in comparison to the contract as a whole.
Example:- Mr. A promises Mr. B to deliver 50 kgs of apple on a certain date and at the specified place but due to some reason he couldn’t manage to deliver all the 50 kgs of apple. So instead he delivered only 45 kgs of apple to Mr. B. This is substantial performance.
• Partial Performance
Partial Performance means where one party completes performance under an oral contract – it means one party has performed the contract, but not completely, and the other party has shown willingness to accept the part performed. Partial performance may occur where there is shortfall on delivery of goods or where a service is not fully carried out.
There is a thin line of difference between substantial and partial performance. The two following points would help in distinguishing the two types of performance.
Partial performance must be accepted by the other party. In other words, the party who is at the receiving end of the partial performance has a genuine choice whether to accept or reject. Substantial performance, on the other hand, is legally enforceable against the other party.
Payment is made on a different basis from that for substantial performance. It is made on quantum merit, which literally means as much as is deserved.
Example:- If half of the goods are supplied then half of the negotiated money would be payable. In case of substantial performance, the promisee can recover the amount for the part of the performance which was not made from the promisor side. Provided that the contract is not an entire contract. The price is thus, often payable in such circumstances, and the sum deducted represents the cost of repairing defective craftsmanship.
• Attempted performance or tender:
Sometimes, a party to a contract who is bound to perform a promise is ready and willing to perform it at the proper time and at specified place, but is unable to do so because the other party to a contract does not accept the performance. This willingness of the party is known as ‘Attempted performance’ or ‘Tender’. It simply means that one party attempted to perform his part of the contract.
Tender is defined as “an offer to perform the obligation under a specified contract in accordance with the terms of the contract. It is not actual performance.”
TYPES OF TENDER:-
Tender is of two types :-
1. Tender of Goods :- Attempted performance of a promise to do something
2. Tender of Money :- Attempted performance of a promise to pay something.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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