Useful Notes on Actual Performance and Attempted Performance

2. Attempted performance

1. Actual performance:

When a party to a contract does what he had undertaken to do under the contract, he is said to have actually performed his obligation to the contract. Then it becomes the duty of the other party to do what he had agreed to do under the contract. Thus, when both the parties perform their respective obligations, the contract comes to an end.

Contracts usually indicate when, where and how the performance is to be done. It must be done strictly according to the terms and conditions of the contract.

2. Attempted performance or offer to perform or tender:

Sometimes, the party who is bound to perform a promise under a contract is ready and willing to perform it at the proper time and place, but is unable to do so because the other party does not accept the performance. This willingness of the party is known as ‘Attempted performance’ or ‘Offer to perform’ or ‘Tender’.

Thus, tender may be defined as “an offer to perform the obligation under the contract in accordance with the terms of the contract. It is not actual performance.”

Types of Tender:

Tender or attempted performance is of two types, viz. –

1. Tender of Goods, i.e., attempted performance of a promise to do something, and

2. Tender of Money, i.e., attempted performance of a promise to pay something.

Essentials of a Valid Tender:

Under Section 38, a tender, to be valid and adequate, must have the following essentials:-

1. It must be unconditional,

2. It must be for the whole quantity, contracted for or for the whole obligation. It must not be in installments, if the contract requires it in full.

3. It must be by a person who is in a position and is willing to perform the promise.

4. It must be at the proper time and place. A tender of goods after the business hours or of the goods or money before the due date will not be valid.

5. It must be in proper form.

6. It must be made to a proper person, i.e., the promisee or his authorised agent.

7. In case of the tender of goods, the promisee must be given a reasonable opportunity to inspect the goods.

8. It may be made to one of the several joint promises.