Unit-4.3 EFFECT OF REFUSAL OF PARTY TO PERFORM WHOLLY (SECTION 39)
Section 39 provides that when a party to a contract has refused to perform or disabled himself from performing his promise in its entirety the promisee may put an end to the contract unless he had signified, by words or conduct his acquiescence in its continuance.
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4.4 BY WHOM A CONTRACT MAY BE PERFORMED (SECTION 40, 41 AND 42)
Example 5: X, a singer enters into a contract with Y, the manager of a theatre to sing at his theatres two nights in every week during the next two months, and Y engaged to pay her Rs. 10,000 for each night’s performance.
On the sixth night, X willfully absents herself from the theatre. Y is at liberty to put an end to the contract.
Analysis of Section 39
From language of Section 39 it is clear that in the case under consideration, the following two rights accrue to the aggrieved party, namely, (a) to terminate the contract; (b) to indicate by words or by conduct that he is interested in its continuance.
In case the promisee decides to continue the contract, he would not be entitled to put an end to the contract on this ground subsequently. In either case, the promisee would be able to claim damages that he suffers as a result on the breach.
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