agree that the contract shall become void, (1) when a specified term is not fulfilled, (2) when a particular event occurs, (3) when one of them exercises an option to determine the contract. The commonest case of this is a bond, i.e. a promise subject to or defeasible upon a condition expressed in the bond. So where a common carrier agrees to take goods safely to their destination or indemnify the owner for their loss or injury, there is an implied term that he shall be exonerated by act of God' and of the Queen's enemies, and if the risk contemplated occurs the carrier is exonerated. If A agrees to sell and B to buy a certain house subject to the approval of the title by B's attorneys, and the attorneys disapprove the title, A may rescind the contract 2. And the contract may be rescinded even when the happening of the condition is at the will of the party making it3. ance. The commonest case of the determination of a contract by notice is that of master and domestic servant. (7) Discharge by Performance. Of this the commonest forms Performare payment and tender. Payment is defined as the performance either of an original or substituted contract by the delivery of Payment. money or of a negotiable instrument conferring the right to receive money. In this last event the payee may have taken the instrument in discharge of his right absolutely or subject to a condition that if payment be not made when the instrument falls due the parties revert to their original rights. Tender is an attempted Tender. performance. The Indian law on this subject is contained in the Contract Act, sec. 38, which declares that where the promisor makes at a proper time and place an unconditional offer to perform his promise, and the offer is not accepted, he is not responsible for nonperformance; provided that the promisee has a reasonable opportunity of ascertaining (a) that the promisor is able and willing there and then to perform his promise, and (b) if the promise is to deliver something, that the thing offered is that which the promisor is bound to deliver. The distinction drawn in England between tender by delivery and tender by payment is not recognised by the Indian Act. In India therefore, a debtor whose tender of Legal tender. Breach. money is refused need not aver in a suit against him that he is ready and willing to pay the debt, nor need he pay the money into court1. In England a tender of money need not necessarily be of the exact sum due, but of such a sum as that the creditor can take exactly what is due without being called upon to give change. The Indian Act is silent on this point. No doubt the English rule would be followed. Legal tender, as regards coinage and currency notes, is regulated by the Indian Coinage Act, XXIII of 1870, secs. 12, 13, 14, and the Indian Paper Currency Act, XX of 1882, sec. 16. No gold coin is a legal tender in payment or on account. The rupee and half-rupee are a legal tender, provided that the coin has not lost more than two per cent. in weight: provided also that it has not been clipt or filed or defaced or diminished otherwise than by use. The quarter rupee and eighth of a rupee are legal tender only for the fractions of a rupee, subject to the second of the above provisoes, The (copper) double pice is a legal tender for the 32nd part of a rupee or half an anna, the (copper) pice for the 64th of a rupee, or fourth of an anna: the half pice for the 128th of a rupee or eighth of an anna: the pie for the 192nd part of a rupee or twelfth of an anna. But none of these copper coins is a legal tender except for the fractions of a rupee. Within any of the Circles of Issue established under Act XX of 1882, a currency note issued from any town in that circle is a legal tender for the amount expressed in that note in payment or on account of (a) any claim, to the amount of five rupees and upwards, due to the Government of India, and (b) any sum of five rupees and upwards, due by the Government of India or by any body corporate or person in British India. any (8) Discharge of Contract by Breach. The Indian law on this subject is contained in the Contract Act, secs. 39, 51, 53, 54 and 55. Sec. 39 deals with the two cases in which a party to a contract before, at, or after the time fixed for its performance (a) renounces of his liabilities under it, and (b) by his own act makes it impossible that he should fulfil any of them. In either case the promisee may put an end to the contract unless he has signified, by words or conduct, his acquiescence in its continuance. It seems that under this section a partial failure to perform renders the whole contract voidable, even though the failure is such that damages will properly compensate for it 2. 1 Bullen and Leake, 3rd ed. 694. 2 But see contra, 4 Cal. 255-258, per Garth C. J, Sect. 51 declares that, where a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. Sec. 53 declares that when a contract contains reciprocal promises and one party prevents the other from performing his promise the contract becomes voidable at the option of the party so prevented. Sec. 54 mentions the case of a contract consisting of reciprocal promises such that one of them cannot be performed till the other has been performed and the maker of the latter promise fails to perform it. In such case, the Act means, though it does not say so, that the maker of the former promise may rescind the contract. Sec. 55 declares that where time is of the essence of a contract to do a thing at or before a specified time, failure to do the thing at or before the specified time enables the injured party to rescind the contract. As to terms respecting time, the Indian Courts have always followed the English Courts of Equity, and endeavoured to ascertain whether in fact the performance of the contract was meant to depend upon A's promise being fulfilled to the day, or whether a day was named in order to secure performance within a reasonable time. Of course the parties may expressly make time of the essence of the contract2; and where the matter of the contract is required for immediate use, or is of a terminable or fluctuating character or value 3, time is essential. for breach. When a contract is broken, the person injured by the breach has Remedies two remedies, damages for the loss he has sustained, and specific performance of the contract. The rules as to damages are contained in the Contract Act, secs. Damages. 73, 74. They are four:- 1. The loss must either have 'naturally' arisen in the usual course of things for such breach, or been a loss which the parties knew, when they made the contract, to be likely to result from the breach: 2. The loss must not be remote or indirect: 3. In estimating the loss, the means which existed of remedying the inconvenience caused by the breach must be taken into account. 4. If a sum is named in the contract as the amount to be paid in case of the breach, the person injured is entitled, whether or not There is now in England no dis- 2 Parkin v. Thorold, 16 Beav. 59. tinction in this respect between the 3 Macbryde v. Weekes, 22 Beav. rules of law and equity, 36 & 37 Vic. 533. See Leake, Contracts, 448. c. 66, sec. 25, sub-sec. 7. Specific perform. ance. Release. Decree. Limitation. actual loss is caused by the breach, to reasonable compensation not exceeding the amount so named. To this the case of a bond for the performance of a public duty is an exception. This rule abolishes the English distinction between penalty and liquidated damages. We may add the rule that damages in a suit for breach of contract are by way of compensation and not of punishment. To this there is an exception in the case of a suit for breach of promise of marriage 1. The rules as to the other remedy-specific performance-are contained in the Specific Relief Act, with which this volume ends, and will be considered when we come to deal with that enactment. The right of action arising from a breach of contract can only be discharged (a) by the consent of parties, (b) by the judgment of a court of competent jurisdiction, or (c) by lapse of time 2. Discharge by consent of parties takes place by Release, as to which the only provision in the Contract Act is sec. 44, which declares that where two persons have made a joint promise, a release of one of the joint promisors by the promisee does not discharge the other. As Indian law knows nothing of promises under seal, there must apparently, in India, be consideration for the promise of the party entitled to sue, except perhaps in the case of bills of exchange and promissory notes. The Contract Act is silent as to Accord and Satisfaction. The decree of a court of competent jurisdiction in the plaintiff's favour discharges the right of action arising from breach of contract. The right is thereby merged in the form of obligation, unfortunately called in English law a contract of record. This obligation is discharged either by satisfaction obtained by the decree-holder from the property of his debtor by the process of execution, or by payment of the judgment debt. In the latter case the decree-holder is required to certify the payment to the Court whose duty it is to execute the decree. If he fails to do so, the judgment debtor may procure the payment to be recorded. Lapse of time. The remedies for the violation of rights arising from contract is barred after a certain lapse of time, though, except in cases of immoveable property, the rights are not extinguished. The law on this subject will be found in the Limitation Act printed in the second volume of this work. There, too, will be found mentioned the disabilities which suspend the operation of that Act, and the rules as to the revival of the right of action by acknowledgment or part-payment. (e) Impossibility of performance. The Indian law as to the dis- Impossibicharge of a contract by physical or legal impossibility arising after lity. its formation is contained in the Contract Act, secs. 32, 34, 56. A contingent contract (i. e. a contract to do or forbear some act if some collateral event does or does not happen) becomes void if the event becomes impossible. The illustration of this is: 'A contracts to pay B a sum of money when B marries C. C dies without being married to B. The contract becomes void.' If the event is the way in which a person will act at an unspecified time, the event shall be deemed to become impossible when he does anything which renders it impossible that he should so act within any definite time or otherwise than under further contingencies.' The illustration is: 'A agrees to pay B a sum of money if B marries C. C marries D. The marriage of B to C must now be considered impossible, although it is possible that D may die and that C may afterwards marry B1. Lastly, 'A contract to do an act, which after the contract is made becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful?.' In connection with these general provisions may be read the special rules in the Transfer of Property Act, secs. 68 and 108, which apply when immoveable property mortgaged or leased is during the continuance of the mortgage or lease wholly or partially destroyed from no default of either party. In England subsequent impossibility, whether or no it originates in the default of the promisor, does not excuse from performance, except in the following cases: legal impossibility arising from a change in the law of England; destruction of the subject-matter of the contract from no default of either party; and where the contract is to render personal service, the death or incapacitating illness of the promisor. This last case probably comes within the second paragraph of sec. 56 of the Indian Contract Act. Where a party by his own act renders the contract impossible of performance, the other party is discharged and may at once sue for compensation. If, for example, A promises to assign to B within seven years from the date of the promise all his interest in Otherwise in England, Randal v. Payne, I Bro. C. C. 55. Contract Act, sec. 56, par. 2. Here 'unlawful' probably means 'un- |