Section 41 of Indian Contract Act
41. Effect of accepting performance from third person.— When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.
Final Thoughts
Introduction
Section 41 of the Indian Contract Act, 1872 talks about the effect when a promise is performed not by the original promisor, but by a third person. It answers an important legal question: Can a promisee accept performance from someone other than the promisor? And if yes, what happens then? This section provides clarity about the rights of the promisee after accepting such performance.
Meaning of Section 41
Text of Section 41: “When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.”
In simple words: If the person to whom the promise is made (the promisee) accepts the performance of the contract from someone else (a third party), then he cannot later demand the same performance from the original promisor.
Purpose of the Section
The main purpose of Section 41 is to:
- Protect the promisor from being liable twice.
- Make sure that once the promisee accepts performance from another person, the contract is treated as fulfilled.
- Avoid unfair advantage to the promisee.
Illustration for Better Understanding
A promises to deliver goods to B. But before A delivers the goods, C (a third person) delivers the same goods to B on behalf of A. If B accepts the goods from C, then B cannot later say to A, “You still owe me the goods.” Because by accepting performance from C, the contract is considered fulfilled.
Essential Elements of Section 41
To apply Section 41, the following conditions must be present:
- There must be a valid promise/contract.
- Performance must be done by a third person, not the original promisor.
- The promisee accepts the performance from this third person.
- Once accepted, the promisee cannot go back and demand the same performance from the original promisor.
Effect and Legal Consequence
Once the promisee accepts performance from a third party:
- The promisor is discharged from his duty.
- The promise is considered fulfilled.
- The contract comes to an end in terms of that obligation.
- The promisee loses the right to file a case against the promisor for non-performance.
Difference between Promisor and Third Party Performance
| Point | Promisor | Third Party |
|---|---|---|
| Definition | Person who made the promise | Someone other than the promisor |
| Usual Performer | Yes | No, unless allowed or accepted |
| Legal Obligation | Bound by contract | Not directly bound unless agreed |
| After Performance | Contract ends | Contract also ends if accepted by promisee |
Conclusion
Section 41 of the Indian Contract Act ensures fairness in contract performance. If a third party performs a contract and the promisee willingly accepts it, then the original promisor is no longer liable. This prevents unnecessary litigation and encourages practical resolution of disputes.
In short, acceptance of third-party performance = discharge of promisor’s duty.