Section 40 of the Indian Contract Act, 1872: Person by Whom Promise Is to Be Performed

Section 40 explains whether a contractual promise must be performed personally by the promisor or may be performed through another competent person. The answer depends primarily on the nature of the contract and the intention of the parties.

What Section 40 provides

Section 40 - Person by whom promise is to be performed.

If the nature of the case shows that the parties intended a promise to be performed by the promisor personally, the promisor must perform it. In other cases, the promisor or the promisor's representatives may employ a competent person to perform the promise.

Meaning and scope of Section 40

Section 40 distinguishes between promises involving the personal skill, qualification, confidence, taste or ability of a particular promisor and promises that do not depend on the promisor's personal performance.

Where personal performance formed part of the parties' bargain, performance cannot ordinarily be delegated to another person. A promise to create a work requiring the particular promisor's personal skill is the classic example. By contrast, an obligation such as payment of money ordinarily does not require the promisor to make the payment personally, unless the contract or surrounding circumstances indicate a contrary intention.

Personal performance and delegated performance

  • Personal promise: If the contract depends on the promisor's own skill, expertise, reputation or personal confidence, the promisor must perform it personally.
  • Non-personal promise: If personal performance is not essential, a competent person may be employed to carry out the promise.
  • Representatives: Where the obligation is not personal in nature, the promisor's representatives may arrange competent performance, subject to the contract and other applicable legal rules.
  • Intention matters: The wording, nature, subject matter and circumstances of the contract help determine whether personal performance was intended.

Illustrations under Section 40

Payment of money: A promises to pay B a sum of money. The payment may be made personally by A or caused to be made by another person. If A dies before the appointed time, A's representatives must perform the obligation or employ a proper person to do so.
Painting a picture: A promises to paint a picture for B. Because the promise depends upon A's personal skill, A must perform it personally.

How Section 40 works with nearby provisions

Section 40 appears in Chapter IV of the Indian Contract Act, dealing with performance of contracts. It follows Section 39 on refusal to perform a promise wholly. It is followed by Section 41, which addresses the effect of a promisee accepting performance from a third person.

Practical point: Section 40 concerns who may perform the contractual promise. It should not be read as giving an unrestricted right to substitute another person where the identity, personal skill or confidence reposed in the original promisor was material to the agreement.

Official statutory source

The current central text of the Indian Contract Act, 1872 can be checked on the Government of India's India Code portal. For legal proceedings or professional advice, the current statutory text and any applicable amendments, contractual terms and judicial decisions should be verified.

Indian Contract Act, 1872 - official India Code text

This article provides general legal information and is not a substitute for advice on the facts of a particular contract.