Chapter IV - Of the Performance of Contracts
Section 41
Section 41: Acceptance of third-party performance
Section 41 prevents enforcement of the same promise against the original promisor after the promisee accepts its performance from a third person. It focuses on accepted performance, not merely an unsolicited offer from someone else.
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Need advice on Section 41?
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
When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.
Rule and business relevance
The promisee must have accepted performance of the promise from the third person. When that condition is met, the promise cannot afterwards be enforced against the promisor under this provision.
Limits and related provisions
A rejected offer, a disputed partial payment or an unclear receipt should not automatically be treated as acceptance of the whole promised performance. Establish what was tendered and accepted and consider any settlement terms.
Hypothetical business example
Hypothetical: a creditor accepts the full agreed payment from a third person on the debtor's behalf. It cannot seek a second performance of that same payment promise from the debtor merely because the debtor did not personally transfer the money.
Practical decision flow
Identify the precise promise and what the third person performed.
Verify the promisee's acceptance and the extent of performance covered by it.
Reconcile records to prevent a duplicate demand for the same accepted performance.
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
- Identify the precise promise and what the third person performed.
- Verify the promisee's acceptance and the extent of performance covered by it.
- Reconcile records to prevent a duplicate demand for the same accepted performance.
Avoid
- A rejected offer, a disputed partial payment or an unclear receipt should not automatically be treated as acceptance of the whole promised performance. Establish what was tendered and accepted and consider any settlement terms.
Glossary
- Third-person performance
- Performance supplied by a person other than the original promisor.
- Accepted performance
- The performance actually received and accepted by the promisee for this rule.
Frequently asked questions
Is a third person's offer alone enough?
The section requires the promisee to accept performance.
Can the promisee demand the same performance again?
Not from the promisor after the Section 41 conditions are met.
Does every partial receipt discharge everything?
Do not assume so. Establish the promise and what performance was actually accepted.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026