Q.What is meant by performance of a contract? Distinguish between actual performance and attempted performance.
Performance of a contract means each party doing exactly what they undertook to do under the agreement. Section 37 requires the parties to a contract to either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused.
| Basis | Actual Performance | Attempted Performance (Tender) |
|---|---|---|
| What happens | The promise is genuinely, completely carried out | The promisor offers to perform, but the promisee refuses to accept |
| Effect on promisor's liability | Fully discharges the obligation | Also discharges the promisor from liability for non-performance, provided the tender was valid |
| Need to offer again? | Not applicable — already performed | No — a valid, refused tender need not be repeated |
A valid tender, though the goods/money were never actually accepted, is treated by law as equivalent to performance for the purpose of excusing the promisor from liability, precisely because the promisor genuinely did everything within their power to perform.
Performance is fulfilling one's contractual promise. Actual performance is the promise genuinely carried out; attempted performance (tender) is a valid offer to perform that the promisee refuses — the tendering party is discharged from further liability for non-performance and need not offer again.
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