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BMLW5103

BMLW5103

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Published by Thethanh Phamnguyen

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Published by: Thethanh Phamnguyen on Jul 30, 2012
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07/02/2013

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7.2

A contract is said to be discharged when the parties to the contract has

performed what they have agreed to do in the contract. Section 38(1) of the

Contracts Act 1950 provides that „the parties to the contract must either perform,

or offer to perform, their respective promises, unless such performance has been

dispensed with or excused under this Act or of any other law‰.

TOPIC 7 LAW OF CONTRACT (DISCHARGE OF CONTRACT AND REMEDIES)

102

Further, Section 38(2) of the Contracts Act 1950 provides that,

„promises bind the representatives of the promisors in case of the death of the

promisors before performance, unless a contrary intention appears from the

contract‰.

The following illustrations explain the provision:

Illustration (a)

A promises to deliver goods to B on a certain day on payment of RM1,000.

A dies before that day. AÊs representatives are bound to deliver the goods

to B, and B is bound to pay the RM1,000 to AÊs representatives.

Illustration (b)

A promises to paint a picture for B by a certain day, at a certain price. A

dies before the day. The contract cannot be enforced either by AÊs

representatives or by B.

Meanwhile, Section 40 of the Contracts Act 1950 provides,

„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 has signified, by word or conduct, his acquiescence in its

continuance‰.

It means that with the promiseeÊs consent, a contract will continue to exist even

though promisorÊs act has already amounted to a breach of the contract.

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