Question 2 OR (a)
Discharge of a contract by attempted performance (tender)
6 marks
- Time to write
- About 12 minutes
- Notes
- Crux notes
Question
Question 2 OR (a) · 6 marks(OR)
- On what conditions is a contract discharged by attempted performance.
Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.
Before you write
Read off the question and its marks
What the paper leaves open
Only a combined mark of 18 is printed for parts (a) to (c); each part is reckoned here at 6 marks (inferred).
Write it in this order
- Read; underline the asks; jot your points 1 min
- 1 Meaning of attempted performance 2 marks 2 min
- 2 Conditions for a valid tender 3 marks 6 min
- 3 Effect 1 mark 2 min
- Check: every ask answered, key terms underlined 1 min
Easy marks
- Meaning of attempted performance (step 1, 2 marks): a clear definition and a line on what it covers. It opens the answer, so it takes a minute or two.
Short on time? Step 2 carries 3 of the 6 marks: guard its minutes.
Try it first. About 12 minutes for 6 marks. Write it out, then open the solution.
Solution
Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.
Meaning. Under section 37 the parties must either perform, or offer to perform, their promises. Where the promisor offers to perform his obligation when it is due but the promisee refuses to accept it, there is an attempted performance or tender: A brings the goods to the agreed place within business hours, but B refuses to take delivery.
Conditions for a valid tender (s. 38):
- Unconditional. Offering to repay only the principal of a loan, without the interest, is not a valid tender.
- At the proper time and place. Delivery offered at 2 a.m. is not valid unless so agreed.
- Reasonable opportunity to examine the goods, so that the promisee can satisfy himself as to their quality and quantity.
- For the whole obligation, with ability and willingness. The promisee must have a reasonable opportunity of ascertaining that the person tendering is able and willing, at that time and place, to perform the whole of what he is bound to do.
Effect (s. 38). Where a valid offer of performance is refused, the promisor is not liable for non-performance, nor does he lose his rights under the contract.
Where the 6 marks sit
| # | Component | Marks |
|---|---|---|
| 1 | Meaning of attempted performance | 2 |
| 2 | Conditions for a valid tender | 3 |
| 3 | Effect | 1 |
| Total | 6 |
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