Section 49 of the Indian Contract Act, 1872: Place for Performance of Promise
Section 49 explains how the place of performance is determined when a promise is to be performed without an application by the promisee and the contract does not itself fix a place for performance.
What Section 49 provides
Section 49 - Place for performance of promise, where no application to be made and no place fixed for performance.
When a promise is to be performed without application by the promisee, and no place is fixed for its performance, the promisor must ask the promisee to appoint a reasonable place for performance and must perform the promise at that place.
Meaning and legal effect
The provision applies where two conditions exist: the promise is one which the promisor must perform without first being called upon by the promisee, and the parties have not fixed the place of performance. In that situation, the responsibility for resolving the missing place of performance rests on the promisor.
The promisor should approach the promisee and request the appointment of a reasonable place. Once such a reasonable place is appointed, performance is to be made there. The rule prevents a promisor from treating the absence of an expressly agreed place as a reason for non-performance.
Illustration under Section 49
The statutory illustration concerns A, who undertakes to deliver one thousand maunds of jute to B on a fixed day. A must ask B to appoint a reasonable place for receiving the jute and must deliver it at that place.
The illustration shows the practical operation of the section: where the contract fixes the obligation and time but leaves the place open, the promisor must take the initiative to have a reasonable place identified.
Key requirements of Section 49
1. No application by promisee: The promise is to be performed without the promisee first demanding performance.
2. No place fixed: The agreement does not specify where performance must occur.
3. Promisor must apply: The promisor must ask the promisee to appoint a reasonable place.
4. Performance at that place: The promisor must then perform at the reasonable place appointed by the promisee.
Section 49 within the rules on performance
Section 49 forms part of the Indian Contract Act provisions dealing with the time and place for performance of promises. It should be read with Section 46, Section 47, Section 48 and Section 50, depending on the terms of the promise and whether an application by the promisee is required.
Official text of the Indian Contract Act, 1872
For the authoritative Central Act text and current statutory compilation, refer to India Code and the Legislative Department, Ministry of Law and Justice.
Frequently asked questions
Who must take the initiative when no place of performance is fixed?
Where Section 49 applies, the promisor must apply to the promisee to appoint a reasonable place for performance.
Can the promisee appoint any place?
The statutory requirement is for a reasonable place. Whether a place is reasonable may depend on the nature of the promise, the subject matter and the circumstances of the contract.
Does Section 49 determine the time for performance?
Section 49 specifically addresses the place of performance in the circumstances stated in the section. Questions concerning time for performance are addressed by the contract and, where applicable, the neighboring provisions including Sections 46 to 48.