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Chapter IV - Of the Performance of Contracts

Section 58

Section 58: Alternative promises with an illegal branch

Section 58 concerns one promise with alternative branches, where one branch is lawful and another is unlawful. Only the lawful branch can be enforced.

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Need advice on Section 58?

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.

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Statutory text

Bare law

In the case of an alternative promise, one branch of which is legal and the other illegal, the legal branch alone can be enforced.

Illustration

A and B agree that A shall pay B 1,000 rupees, for which B shall afterwards deliver to A either rice or smuggled opium. This is a valid contract to deliver rice, and a void agreement as to the opium.

Rule and business relevance

The statutory rule preserves enforcement of the legal alternative while denying enforcement of the illegal one. Its illustration contrasts delivery of rice with delivery of smuggled opium under the same alternative promise.

Limits and related provisions

A promisor cannot insist on performing the unlawful branch to discharge the obligation. The actual arrangement must be a genuine alternative promise; other invalidity affecting the whole contract requires separate analysis.

Hypothetical business example

Hypothetical: a supplier promises either a lawful product or a prohibited smuggled product for the agreed price. The lawful branch is assessed for enforcement; the buyer cannot use the alternative wording to compel illegal delivery.

Practical decision flow

Identify each alternative branch of the promised performance.

Establish which branch is unlawful under the applicable law.

Assess enforcement of the lawful branch together with the contract's other validity requirements.

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 each alternative branch of the promised performance.
  • Establish which branch is unlawful under the applicable law.
  • Assess enforcement of the lawful branch together with the contract's other validity requirements.

Avoid

  • A promisor cannot insist on performing the unlawful branch to discharge the obligation. The actual arrangement must be a genuine alternative promise; other invalidity affecting the whole contract requires separate analysis.

Glossary

Alternative promise
A promise offering different branches of performance.
Legal branch
The lawful alternative which Section 58 allows to be enforced.

Frequently asked questions

Can the illegal alternative be chosen for enforcement?

No. Only the legal branch can be enforced under this section.

Does this automatically cure every defect in the agreement?

No. Other grounds affecting enforceability still need review.

How does this differ from Section 57?

Section 58 concerns alternative branches of a promise; Section 57 addresses the described sets of reciprocal promises.

Need help applying this provision to your situation?

Contact Bizeneed

Last updated 10 October 2026