Modes of Discharge of a ContractIndian Contract Act 1872 Notes
Meaning of Discharge of a Contract
Discharge of a contract means termination of the contractual relations between the parties to a contract. A contract is said to be discharged when the rights and obligations of the parties under the contract come to an end.
Modes of discharge of a contract:
A Contract is said to be discharged when the rights and
obligations created by it come to an end. A contract may be discharged in the
following modes: -
1. Discharge by performance:
Discharge by performance takes place
when the parties to a contract fulfill their obligations arising under the
contract within the time and in the manner prescribed. Performance may be
actual performance or attempted performance.
2. Discharge by Agreement or Consent:
A Contract comes into
existence by an agreement and it may be discharged also by an agreement. The
following are modes of discharge of a contract by an agreement:
a) By Waiver: Waiver takes place when the parties to a contract agree that they
shall no longer be bound by the contract. For e.g. An actor promised to make a
guest performance in the film made by B. Later B forbids A from making the
guest appearance. B is discharged of his obligation.
b) By Novation: Novation occurs when a we contract is substituted for an
existing contract, either between the same parties or between different
parties, the consideration being the discharge of old contract, mutually. E.g.:
A is indebted to B & C to C. By mutual agreement B’s debt to C & B’s
loan to A are cancelled & C accepts as his debtor.
c) By
Rescission: Rescission of a contract takes place
when all or some of the terms of the contract are cancelled. It may occur by
mutual consent or where one party fails in the performance of his obligations,
the other party may rescind the contract.
d) By
alteration: Alteration of a contract may take place
when one or more of the terms of the contract is/are altered by mutual consent
of the parties to the contract.
e) By Remission: Remission means acceptance of a lesser fulfillment of the promise
made, E.g. Acceptance of a lesser sum than what was contracted for, in
discharge of the whole of the debt.
f) By Merger: Merger takes place when an inferior right accruing to a party under
a contract merges into a superior right accruing to the same party under the
same or some other contract. For e.g. P holds a property under a lease. He
later buys the property. His rights as a lessee merge into his rights as an
owner.
3. Discharge by impossibility of performance:
If a contract
contains an undertaking to perform impossibility, it is void ab initio. As per Section 56, impossibility of performance
may fall into either of the following categories –
(i) Impossibility
existing at the time formation of the contract: This
is known as pre-contractual impossibility. The fact of impossibility may be:
a) Known to the
parties: Both the parties are aware or know that the contract is to perform
an impossible act. For e.g. A agrees with B to put life into dead wife of B,
the agreement is void.
b) Unknown to
the parties: Both the parties are unaware of the impossibility. The
contract could be on the ground of mutual mistake of fact. For e.g. contract to
sell his house at Andaman to B. Both the parties are in Mumbai and are unknown
to the fact that the house is actually washed away due to Tsunami.
(ii) Impossibility
arising subsequent to the formation of the contract: Where impossibility of
performance of the contract is caused by circumstances beyond the control of
the parties, the parties are discharged from further performance of the
obligation arising under the contract.
4. Discharge by lapse of time:
The Limitation Act, 1963 lays down certain
specified periods within which different contracts are to be performed and be
enforceable. If a party to a contract does not perform, action can be taken
only within the time specified by the Act. Failing which the contract is
terminated by lapse of time. For e.g. A sold a gold chain to B on credit
without any period of credit, the payment must be made or the suit to recover
it, must be instituted within three years from the date of delivery of the
instrument.
5. Discharge by Operation of Law:
A contract may be discharged
independently of the wished of the parties i.e. by operation of law. This
includes discharge:
a) By death: In contract involving personal skill or ability, the contract is
terminated on the death of the promisor. In other contracts the rights and
liabilities of a deceased person pass on to the legal representatives of the
deceased person.
b) By
insolvency: When a person is declared insolvent, he
is discharged from all liabilities incurred prior to such declaration.
c) By
unauthorized material alteration of the terms of a written agreement: Any material alteration made by a party to the contract, without
the prior permission of the other party, the innocent party is discharged.
d) By rights and
liabilities becoming vested in the same person:
When the rights and liabilities under a contract vests in the same person.
6) Discharge by Breach of Contract:
A breach of contract occurs
when a party thereto without lawful excuse does not fulfill his contractual
obligation or by his own act makes it impossible that he should perform his
obligation under it. A breach to a contract occurs in two ways: -
a) Actual
Breach: When a party fails, or neglects or refuses
or does not attempt to perform his obligation at the time fixed for
performance, it results in actual breach of contract. For e.g. A promises to
deliver 100 packs of ice-cream to B on his wedding day. A does not deliver the
packs on that day. A has committed actual breach of the contract.
b) Anticipatory Breach: Anticipatory Breach is a breach before the time of the performance of the contract has arrived. This may take place either by the promisor doing an act which makes the performance of his promise impossible or by the promisor, in way showing his intention not to perform it.