Sometimes it so happens that the promisor offers to perform his obligation under the contract at the proper time and place but the promisee does not accept the performance, this is known as "attempted performance" or "tender". where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract.
Thus, a tender of performance is equivalent to actual performance. It excuses the promisor from further performance and entitles him to sue the promisee for the breach of contract.
Requisites of a valid tender :
1) it must be unconditional. It becomes conditional when it is not in accordance with the terms of the contract.
2) it must be of the whole quantity contracted for or the whole obligation. A tender of an instalment when the contract stipulates payment in full is not a valid tender.
3) it must be by a person who is in a position and is willing to perform the promise. 4) it must be made at the proper time and place. A tender of goods after the business hours or of goods or money before the due date is not a valid tender.
5) it must be made to the proper person, i.e., the promisee or his duly authorized agent. It must also be in proper form. 6) it may be made to one of the several joint promisees. In such a case it has the same effect as a tender to all of them.
7) in case of tender of goods, it must give a reasonable opportunity to the promisee for inspection of the goods. A tender of goods at such time when the other party cannot inspect the goods is not a valid tender. But in the following case, the tender was held to be valid.
8) in case of tender of money, the debtor must make a valid tender in the legal tender money. If the creditor refuses to accept it, the debtor is not discharged from making the payment. Tender, in this case, does not Constitute discharge of the debt. But when the creditor files a suit against the debtor, the debtor can set up the defence of tender. If he deposits the money in the court and proves his pleas, the creditor gets the amount originally tendered to him but without any interest, whereas the debtor gets the judgement for his cost of defense.
Thus, a tender of performance is equivalent to actual performance. It excuses the promisor from further performance and entitles him to sue the promisee for the breach of contract.
Requisites of a valid tender :
1) it must be unconditional. It becomes conditional when it is not in accordance with the terms of the contract.
2) it must be of the whole quantity contracted for or the whole obligation. A tender of an instalment when the contract stipulates payment in full is not a valid tender.
3) it must be by a person who is in a position and is willing to perform the promise. 4) it must be made at the proper time and place. A tender of goods after the business hours or of goods or money before the due date is not a valid tender.
5) it must be made to the proper person, i.e., the promisee or his duly authorized agent. It must also be in proper form. 6) it may be made to one of the several joint promisees. In such a case it has the same effect as a tender to all of them.
7) in case of tender of goods, it must give a reasonable opportunity to the promisee for inspection of the goods. A tender of goods at such time when the other party cannot inspect the goods is not a valid tender. But in the following case, the tender was held to be valid.
8) in case of tender of money, the debtor must make a valid tender in the legal tender money. If the creditor refuses to accept it, the debtor is not discharged from making the payment. Tender, in this case, does not Constitute discharge of the debt. But when the creditor files a suit against the debtor, the debtor can set up the defence of tender. If he deposits the money in the court and proves his pleas, the creditor gets the amount originally tendered to him but without any interest, whereas the debtor gets the judgement for his cost of defense.
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