Chapter IV - Of the Performance of Contracts
Section 40
Section 40: Personal performance and delegation
Section 40 distinguishes promises intended to be performed personally from promises that may be performed through a competent substitute. The nature of the case and the parties' intention determine which route applies.
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Need advice on Section 40?
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
If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.
Illustrations
(a) A promises to pay B a sum of money. A may perform this promise, either by personally paying the money to B or by causing it to be paid to B by another ; and, if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.
(b) A promises to paint a picture for B. A must perform this promise personally.
Rule and business relevance
If the intended performer is the promisor personally, the promise must be performed by that person. In other cases the promisor or representatives may employ a competent person to perform. The illustrations contrast payment of money with a personally commissioned painting.
Limits and related provisions
A general ability to employ another performer does not automatically transfer the contract or release the original promisor. Nor does it override an intended personal-performance obligation. Check the terms and nature of the promised work before subcontracting.
Hypothetical business example
Hypothetical: a business commissions a particular artist because of their personal skill. The artist cannot assume that delivering a substitute's work satisfies the same promise merely because the substitute is capable.
Practical decision flow
Read the terms and context to establish whether personal performance was intended.
Where substitution is permitted, select a competent performer and meet the contractual requirements.
Keep delegation distinct from assignment, novation or release of the promisor.
Check the applicable legal framework
This guide explains the central provision. Applicable State amendments, the agreement, transaction date and other governing laws can affect its application. Check the current legal framework before relying on it for a commercial decision.
Practical checklist
Do
- Read the terms and context to establish whether personal performance was intended.
- Where substitution is permitted, select a competent performer and meet the contractual requirements.
- Keep delegation distinct from assignment, novation or release of the promisor.
Avoid
- A general ability to employ another performer does not automatically transfer the contract or release the original promisor. Nor does it override an intended personal-performance obligation. Check the terms and nature of the promised work before subcontracting.
Glossary
- Personal performance
- Performance by the identified promisor where the parties intended it.
- Competent substitute
- A person capable of performing the promise where Section 40 permits employment of another.
Frequently asked questions
May every promise be subcontracted?
No. An intended personal-performance promise must be performed by the promisor.
Can payment sometimes be made through another person?
The statutory illustration recognises that route for the described payment promise.
Does using a substitute automatically release the promisor?
Section 40 does not itself state a general release; distinguish performance arrangements from novation or other discharge.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026