Section 40 Contract Act: Person by whom promise is to be performed

Section 40 of Indian Contract Act: Person by whom promise is to be performed

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor.

In other cases, the promisor or his representatives may employ a competent person to perform it.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Promise Sec 2(b) Promisor Sec 2(c) Contract Sec 2(h)

Legal Commentary & Landmark Judgments: Section 40

Section 40 of the Indian Contract Act, 1872 delineates the identity of the person by whom a promise must be performed, establishing that if parties intended personal performance by the promisor, it must be performed by him; otherwise, the promisor or his legal representatives may employ a competent person.

Personal Skill and Intuitu Personae Exception: Where a contract involves personal confidence, artistic talent, specialized expertise, or matrimonial covenants, performance must be rendered by the promisor personally and cannot be delegated or devolved on legal heirs.
Commercial Obligations and Vicarious Discharge: In ordinary commercial transactions (such as payment of money, delivery of generic goods, or construction), performance may be executed by authorized agents, delegates, or subcontractors.
Devolution upon Legal Representatives Post-Mortem: Upon the promisor's death, his legal representatives are legally bound to perform impersonal promises to the extent of assets inherited from the deceased's estate.

Key Landmark Precedents:

Kapurchand Godha v. Mir Nawab Himayatalikhan Azamjah (1963) 2 SCR 168 / AIR 1963 SC 250: The Supreme Court analyzed the operational boundaries of Sections 40 and 41, distinguishing personal contracts from impersonal commercial obligations dischargeable by representatives or third parties.
Robbins v. Jones (1863) 15 CB (NS) 221: Affirmed that contracts involving personal skill, artistic performance, or personal trust terminate upon the death of the promisor, whereas commercial debts survive against legal representatives under Section 40.

Courtroom Practice & Strategic Litigation Guidance:

In professional services, software architecture, and consulting contracts, incorporate an explicit 'personal performance' covenant if subcontracting is prohibited. When suing legal representatives of a deceased vendor or debtor, rely on Section 40 to establish that the obligation was purely commercial, seeking execution against the inherited estate under Section 52 CPC.

Section 40: Person by whom promise is to be performed

Section 40 of Indian Contract Act: Person by whom promise is to be performed

Legal Commentary & Landmark Judgments: Section 40