Chapter IV - Of the Performance of Contracts
Section 38
Section 38: Effect of refusal to accept offer of performance
A valid offer of performance protects the promisor if the promisee refuses it.
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Need advice on Section 38?
This article is for general information. Refer to the Indian Contract Act, 1872 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
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.
Every such offer must fulfil the following conditions:—
(1) it must be unconditional;
(2) it must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do;
(3) if the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver.
An offer to one of several joint promisees has the same legal consequences as an offer to all of them.
Introduction
Section 38 addresses a proper offer of performance that the promisee refuses. The offer must be unconditional, made at a proper time and place, and allow a reasonable opportunity to check readiness and the offered item.
Key takeaways
Statutory scope
Section 38 addresses a proper offer of performance that the promisee refuses. The offer must be unconditional, made at a proper time and place, and allow a reasonable opportunity to check readiness and the offered item.
Key check
Identify the promise, the complete performance offered and the recipient.
Apply the section
Identify the promise, the complete performance offered and the recipient.
Document the offer’s conditions, time, place and opportunity to inspect the offered goods.
Illustration
A supplier brings conforming goods during agreed receiving hours and offers full delivery, but the buyer refuses inspection or receipt. Section 38 requires checking whether that offer satisfied each statutory condition.
Practical checklist
Do
- Keep dated proof of the offer and refusal.
- Make the complete promised performance available for inspection.
Avoid
- Do not assume a conditional or partial offer has the effect of a valid tender.
Frequently asked questions
Does refusal always excuse the promisor?
The protection applies when the offer meets Section 38’s stated conditions.
What if several persons are joint promisees?
An offer to one joint promisee has the same legal consequences as an offer to all of them.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026