Government of India
Bare Act As Per The Government of India

Section 40 of Indian Contract Act

40. Person by whom promise is to be performed.— If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.

Illustrations

(a) A promises to pay B a sum of money. A may perform this promise, either by personally paying the money to B or by causing it to be paid to B by another ; and, if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.

(b) A promises to paint a picture for B. A must perform this promise personally.

Final Thoughts

Introduction

The Indian Contract Act, 1872 lays down legal principles regarding contracts in India. Section 40 specifically deals with the person who is required to perform the promise under a contract. It helps in understanding whether the promisor must do the act personally or if someone else can do it on his behalf.

Text of Section 40

“If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.”

This section also comes with two illustrations:

Explanation of Key Concepts

Let us understand the important elements of Section 40:

This section highlights the intention of the parties and the nature of the contract as deciding factors.

Types of Promises Based on Performance

Section 40 divides contracts into two categories:

(a) Contracts that Must Be Performed Personally: These are contracts where the promisor’s personal skill, talent, or trust is involved. Example: A singer contracted to perform at an event.

(b) Contracts that Can Be Performed by Another: If personal skill or trust is not important, anyone can do the work. Example: Repayment of loan, delivery of goods.

Legal Rules under Section 40

Rule 1: Nature and Intention of Contract Decide the Performer

If the act involves personal skill or trust, the promisor must do it.

Rule 2: In Other Cases, Delegation is Allowed

If the work can be done by someone else, a competent person may be appointed.

Rule 3: Legal Representatives Can Perform

If the promisor dies before performance, his legal representatives may perform the promise or appoint someone to do it, if personal skill is not required.

Illustrations with Explanation

(a): Monetary Payment

A promises to pay B a sum of money.

Explanation: This is not dependent on A’s personal skills. So, A or any other person (even a representative after A’s death) can pay B. This is a non-personal obligation.

(b): Painting a Picture

A promises to paint a picture for B.

Explanation: Painting involves personal skill and creativity. So, only A must perform this. If A dies or appoints someone else, the contract cannot be enforced. This is a personal obligation.

Conclusion

Section 40 of the Indian Contract Act clearly tells who should perform the promise in a contract. If the work requires personal skill or trust, the promisor must do it himself. But if not, he can appoint someone else or even his legal heirs can complete it.

This section protects the intention of the contract and ensures that parties get what they agreed upon — either the personal service or the performance of a general act.