Q. ‘A’ a singer, contracts with ‘B’, the manager of the theatre, to sing at his theatre for two nights in every week during the next two months and ‘B’ engages him to pay at the rate of ten thousand rupees for each night. On the sixth night ‘A’ wilfully absent herself. With the assent of ‘B’, ‘A’ sings on the seventh night. Can ‘B’ put an end to the continuance of the contract? Give reasons.
West Bengal Judicial Service Exam. 1992
Civil Services (I.A.S.)
Exam. 1978
Ans: No, ‘B’ cannot put an end to the continuance of the contract—Section 39.
Reasons: Section 39 lays down that 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.
But last part of this section speaks that promisee cannot put an end to the contract if he signifies by words or conduct, his acquiescence in its continuance.
In the given problem ‘A’ wilfully absents herself on sixth night but she sings on seventh night with the assent of ‘B’ the manager of the theatre. Thus, by allowing to sing ‘A’ on seventh night, ‘B’ signifies his acquiescence in the continuance of the contract. Thus, he (‘B’) cannot put an end to the continuance of the contract in view of the provision made in last part of Section 39.
Note: It is notable that in this problem ‘B’ cannot put an end to the continuance of the contract, however, he is entitled to compensation for the damage sustained by him because of A’s failure to sing on the sixth night. It is also clear from the Illustration (b) attached to Section 39. But it has not been mentioned in Answer or Reason portion of this problem because it has not been asked in question/problem.
See Illustration (b) attached to Section 39.
Kishor Prasad
