A valid contract requires voluntary offer, acceptance, and consideration
The Indian Contract Act, 1872,regulates the law relating to contracts in India, and is the key Act formulating contract law in India. The Act is based on the principles of English Common Law. It is applicable to all the States of India and determines the circumstances in which promises made by the parties to a contract shall be legally binding. Under Section 2(h), the Indian Contract Act defines a contract as an agreement which is enforceable by law.

A proposal on the basis of a trust becomes a promise and further cumulates into a valid enforceable contract.

Section 2 of The Indian Contract Act, 1872, reads:

Section 2

1. When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;
2. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;
3. The person making the proposal is called the promisor, and the person accepting the proposal is called the promisee;
4. When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;
5. Every promise and every set of promises, forming the consideration for each other, is an agreement;
6. An agreement enforceable by law is a contract;

Thus, whenever a proposal completes the parameters of becoming an enforceable legal agreement, it is called a contract. A contract may be, for the transfer of property, movable or immovable; service; or to complete anything that has a legal backing, and is not immoral or illegal.

It is believed that:
Until a contract is signed, nothing is real. However, a contract may be in writing or oral, but if it fulfils the parameters of being a valid contract, the same is duly enforceable. It may also be considered to be a valid contract, even if it is signed by the vendor alone, and not by the purchaser who accepted it, the said principle of law was recognised by the Supreme Court in Alka Bose Vs. Parmatma Devi & Ors. 2009(2) SCC 582and again in K. Nanjappa (Dead) By Lrs. Vs R.A. Hameed alias Ameersab (Dead) by Lrs. and Another 2015 AIR (SC) 3389.

Merely because there is a transition of a trust to promise to further a contract for consideration, it doesn't really mean that it will always be honoured and completed for the purpose for what it was incorporated. As said earlier, a lot depends on the intention of the parties to the contract.

There may be circumstances where the contract is breached purposely, or it was based upon a contingency that never happened, or it becomes impossible to honour the contract because of Force Majeure popularly described as an act of God.

The term Force Majeure has been defined in Black's Law Dictionary, as 'an event or effect that can be neither anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled. Collins Dictionary defines Force Majeure as an irresistible force or compulsion such as will excuse a party from performing his or her part of a contract.

The concept has its origins in French law where there are express force majeure provisions in the French civil code which excuse contractual performance where events have happened outside the parties' control which could not have been foreseen at the time of contracting and which could not have been avoided by appropriate measures. It can also operate to exclude a claim for damages. However, force majeure is not a standalone concept of English law. Under English law, contractual performance will be excused due to unexpected circumstances, only if they fall within the relatively narrow doctrine of frustration. This doctrine will apply by default unless the parties agree something else in their contract.

While force majeure has neither been defined nor specifically dealt with, in Indian statutes, some reference can be found in Section 32 and Section 56 of the Indian Contract Act, 1872 (the 'Contract Act') which envisages that if a contract is contingent on the happening of an event or the an act which event becomes impossible to do, then the contract becomes void.

Yet, again there may be contracts which are legal when entered into, but becomes illegal by efflux of time or change of law. In such a situation, it is often said that no court will lend its aid to a man who files a claim based on an illegal act. Simply put, what this means is that the law will not afford relief to those who claim entitlements from an illegal act.

When it comes to illegal contracts, the general position has always been that the loss will lie where it falls, meaning that if a party that suffers loss due to an illegal contract, he cannot sue the other contracting party to recover such losses.

However, when a party cannot perform its obligations under a contract, because of an act of God or other unforeseen circumstances, the act of God does not relieve the parties of their contractual obligations to an otherwise legal contract unless the parties expressly provideotherwise.However, where the parties include a force majeure clause in the contract - provision that allocates risk of non-performance in circumstances beyond the parties' control - such acts of God or other circumstances, it may exempt them from performance.

Courts typically construe force majeure clauses narrowly. Therefore, whether disruption based on a pandemic, like COVID-19, can excuse performance will depend on the language of the particular force majeure clause. Under the law of many States in Unites States of America, including New York and Texas, the force majeure clause will be triggered only where the clause expressly includes the contingent event. Where a force majeure clause explicitly uses terms such as disease, epidemic, pandemic, quarantine, act of government or state of emergency, parties may, depending on the circumstances, be able to assert force majeure as a defense to non-performance or anticipatory breach in a situation like the COVID-19 pandemic.

Notably, it is not enough for the party asserting the force majeure clause to show that the act of God, or any other event made performance merely more difficult, or more economically burdensome; the party must show that performance of its contractual obligations has been prevented by the event. Taking precautionary measures, or making a voluntary decision not to perform, is not the same as being prevented from performance.In the absence of an express force majeure provision within an English law contract, parties may be able to rely upon the doctrine of frustration. By contrast, the doctrine of frustration is not available, if the contract contains an express force majeure provision, since the provision will be regarded as the agreed allocation of risk between the parties.

Having referred to the doctrine of frustration, it would be relevant to state the position of Indian law recognising the said doctrine. Under the Contract Act, it is Section 56 thereof, which lays down that principle.

Section 56 of The Indian Contract Act, 1872, lays down:

56. Agreement to do impossible act:

An agreement to do an act impossible in itself is void. - An agreement to do an act impossible in itself is void.' Contract to do act afterwards becoming impossible or unlawful.—A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

1. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
2.  Compensation for loss through non-performance of act known to be impossible or unlawful.

Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise. —Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.

Thus, Section 56 of the Contract Act provides for the doctrine of frustration.

The doctrine of frustration will apply if:

• The underlying event is not the fault of any party to the contract;
• The event or circumstance occurs after the formation of the contract and was not foreseen by the parties;
• It becomes physically or commercially impossible to fulfil the contract, or transforms the obligation to perform into a radically different obligation from that undertaken initially.

The doctrine of frustration results in the contract automatically coming to an end. The parties to the contract will no longer be bound to perform their future obligations. Because of the dramaticconsequence'scontractual frustration, the threshold for proving frustration is much higher than that for most force majeureprovisions, since it must be shown that the obligations impacted by the event or circumstance are fundamental to the contract.
Thus, it is apparent that at times even where both the parties to a contract have been ready and willing to perform their part of the contract, but because of some unforeseen reason, which is beyond their control, the contract becomes impossible to perform, and as a result gets frustrated.

However, the law envisages that in the case the contract cannot be performed, having become void, impossible or has become frustrated, then in such a situation, the advantages received by any party to the contract must be restored. This is a principle of equity and fair play.

Section 65 of the Indian Contract act which reads as under:

Section 65 :Obligation of person who has received advantage under void agreement, or contract that becomes void - When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore, it, or to make compensation for it, to the person from whom he received it.

The above provision is based on the principle of equity and fair play, and to avoid undue enrichment, and is well elucidated in the English case, Fibrosa Spolka v. Fairbairn Lawson 1943 AC 32.

This case may be explained as follows:
The respondent contracted with the appellant, a Polish company, to manufacture certain machinery and deliver it to Gdynia. Part of the price was to be paid in advance, and the appellant accordingly paid £1000. The contract was frustrated by the occupation of Gdynia by hostile German forces in September 1939. The appellant thereupon requested the return of the £1000. This amount was not returned only because considerable work had already been put into construction of the machinery.

The amount recovered in the above case is to be construed, not as an action on the contract, but an action in restitution to recover the money paid on a consideration which had failed. Further, the term consideration as used in the above sentence is to be construed, not in the sense of consideration as may be necessary to the formation of the contract, but rather in the sense of the performance of an obligation already incurred. Therefore, the essence of Section 65 may be captured in that a party who has paid money but has received no part of the bargained - for performance, is entitled to recover it, for the consideration has completely failed.

There may be another set of circumstances where though the parties to an agreement or contract have entered into a valid agreement, and have fixed a target date to complete that contract, but one of the parties to the contract becomes dishonest, or has no means to fulfilthe promise so made, or maybe is not ready or willing to perform his part, in all such circumstances the contract can be enforced for its due performance through the process of court, as isso defined under Section 2(h) of the Indian contract act that An agreement enforceable by law is a contract.

Under such circumstances, where there is a breach by a party to a contract and the other party wants its enforcement in a court of law, then a suit can be filed under the provisions of Specific Relief Act, 1963, claiming Specific Performance of the contract.Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract.

Section 16 of the specific relief act reads as:

16. Personal bars to relief:

Specific performance of a contract cannot be enforced in favour of person-

1. who has obtained substituted performance of contract under section 20; or
2. who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
3. who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

Explanation: For the purposes of clause (c)-

1. where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
2. the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction.

Thus, a suit for specific performance can be filed by any party, in a court of competent jurisdiction, who has suffered loss due to breach or non-performance of contract on part of the other party to the contract. Prior to the amendment in the specific relief act the relief so claimed by a party, who had suffered a breach was considered to be a discretionary relief, asprovided under section 20(1) of the Specific Relief Act. However, enforceability of a contract is an alternative to awarding damages, and is classed as an equitable remedy, commonly used in the form of injunctive relief, concerning confidential information or real property. Section 16(c) of the Act put the onus of proof on the plaintiff to prove by way of evidence, that he had performed his part of contract or was willing to perform his part of contract.

Clause (c) emphasizes the phrase 'ready and willing'. It is the most important pre-requisite on the part of the plaintiff to file a suit for specific performance. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him.

These two words readiness and willingness are sometimes treated as synonymous, and are treated to have almost the same sense or meaning, but there is a clear-cut distinction between the two.While 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action, and is preceded by necessary preparation for being in a position to be ready.

The words readiness and willingness, though often clubbed and termed together, are in-fact two different words, having entirely different requirements and parameters. In other words, we can say that while 'willingness' may he something to do mainly with a person's mental process to do an act, his readiness implies a close proximity of such willingness and its ultimate physical manifestation. 'Readiness' must in all cases be backed by willingness, and its imminent physical action is demonstrated when it is about to be put into action. Time lag between the two may sometimes be very short, may even be negligible, but it must always be preceded by an intention or a will to do. In short, 'readiness' must be said to be the total equipment of a person who is willing to do a thing before he actually does it.

According to Bouvier's Law Dictionary, IIIrd Revision, the expression ready and willing has been defined as 'implies capacity to act as well as disposition.'
In Stroud Dictionary, the said expression is defined as under:
It implies not only the disposition but the capacity to do the act.

In Webster Dictionary page 796, ready is defined as 'prompt in performance or action' and 'willing' at page 1138 is defined as 'having the mind inclined not averse, desirous, ready, relating to or pertaining to power or process of choice, volitional

Corpus Juris Secundum defines the word 'ready' as 'variously defined as meaning prepared for what one is about to do or experience; prepared for immediate movement or action; causing no delay for lack of being prepared; equipped or supplied with what is needed for some act or event, inclined or willing.'

It also mentions that 'ready' has been held to be synonymous with prompt Willing has been defined as 'desirous, inclined or favourably disposed in mind; Ready; it has been compared with 'justified.' Willingness, according to Corpus Juris Secundum, 'Signifies a mental state and may be evidenced by consent.'

There may be cases, where though a person may be willing, yet may not be able to do, or in a capacity to do, what he wills. He cannot be said to be ready to do it. In other cases, the person may possess all that is necessary to do an act. He may be ready, but if the will to do is not there, his willingness will be lacking. One cannot remain unaware of such cases, in which the plaintiff may go on demanding performance of the contract for keeping the agreement alive, yet really speaking he does not intend to pursue the matter, but only wants to keep it alive for some ulterior motives.

Since while granting specific performance the Court acts in equity, it becomes necessary that a high standard of equitable conduct must be displayed by the plaintiff. It is for this reason that a rigor of this kind has been provided in Section 16. It is primarily to eliminate any element of fraud and risk of a party taking undue advantage of the other that the discretion to grant a decree of specific performance has still been left with the Court.

Many judicial decisions have dealt with the concept of readiness and willingness, but no strait jacket formula is available, and readiness and willingness in each case depend on its own facts. The Supreme Court of India in His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar 1996 (4)SCC 526,drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price.

However, as far as the willingness to perform the contract is concerned, conduct of the plaintiff has to be properly scrutinized, along with other attendant circumstances. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances.
It was held by a Division Bench of Delhi High Court in Raj Rani Bhasin And Ors. vs S. Kartar Singh Mehta AIR 1975 DEL 137:
10A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase price.

We will assume for the sake of argument that the plaintiff respondent could have raised the money to pay the purchase price if he wanted to do so. But the more important question is whether he was willing to perform his part of the contract even if 'he had the financial capacity to do so. It is here that the plaintiff's conduct has to be properly scrutinised. In our view, the trial Court has not done so. It has merely concentrated its attention on the financial ability of the plaintiff to raise the money to pay the purchase price but has not noticed the unwillingness of the plaintiff to perform his part of the contract and to present a sale deed on stamp paper for the execution of the defendants and to pay the purchase price from 16-8-1962 to 16-9-1962………..

In M/s J.P. Builders and another v. A. Ramadas Rao and another2011 (1) RCR (Civil) 604,further reasserting the distinction between the two words it was held by the Supreme Court:
The words 'ready' and 'willing' imply that the person was prepared to carry out the terms of the contact. The distinction between 'readiness' and 'willingness' is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.

Relying upon its earlier decision,it was again asserted by the Supreme Court in Kalawati (D) Vs. Rakesh Kumar 2018 AIR (SC) 960:
In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, 1996(2) R.R.R. 684 : (1996) 4 SCC 526 this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract.

It was held in paragraph 2 of the Report:
'There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised.....

The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.'

20. In I.S. Sikandar (Dead) by Lrs. v. K. Subramani & Ors., 2014(1) R.C.R.(Civil) 236 : (2013) 15 SCC 27 this Court noted that the plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract. In this case, looking the attendant facts and circumstances, the Court upheld the view of the Trial Judge that the plaintiff had no money to pay the balance sale consideration and was apparently not capable of making necessary arrangements for payment of the balance consideration. It was held in paragraph 45 and paragraph 47 of the Report:
'45......Further, the plaintiff is required to prove the fact that right from the date of execution of the agreement of sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement...'

'47. Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them. But, on the other hand the trial court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration.....'
Thus, it is apparent that for a person to seek specific performance for the breach of his contract, he must establish that the contract was a valid and legally enforceable contract and that he has not only been ready but also willing throughout to perform his part of the contractual obligations.

Though a sub clause (i) to explanation of section 16 (c) of Specific Relief Act clearly provides that where the contract involves payment of money, it shall not be essential for the plaintiff to tender the same in the court or to the defendant , yet taking a different view from Sukhbir Singh v. Brij Pal Sing, (1997) 2 SCC 200

'5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub- Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.'

It was held in Vijay Kumar & Ors. Vs. Om Parkash AIR 2018 SC 5098:
7.………………………As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of L 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.

8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside.

It was further held in Ritu Saxena Vs. J.S. Grover & Anr. 2019 (4) RCR (C) 540:
15.........Such selfserving statements without any proof of financial resources cannot be relied upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant has not produced any income tax record or the bank statement in support of her plea of financial capacity so as to be ready and willing to perform the contract. Therefore, mere fact that the bank has assessed the financial capacity of the appellant while granting loan earlier in respect of another property is not sufficient to discharge of proof of financial capacity in the facts of the present case to hold that the appellant was ready and willing to perform her part of the contract. Such is the finding recorded by both the courts below as well

It was also held by the Supreme Court in Madhukar Nivrutti Jagtap & Ors. Vs. Smt. Pramilabai Chandulal Parandekar & Ors 2019 (4) RCR (C) 114:
13.2 ...... The question as to whether the plaintiff seeking specific performance has been ready and willing to perform his part of the contract is required to be examined with reference to all the facts and the surrounding factors of the given case. The requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance.

For the relief of specific performance, which is essentially a species of equity but has got statutory recognition in terms of the Specific Relief Act, 1963[5*], the plaintiff must be found standing with the contract and the plaintiff's conduct should not be carrying any such blameworthiness so as to be considered inequitable. The requirement of readiness and willingness of the plaintiff is not theoretical in nature but is essentially a question of fact, which needs to be determined with reference to the pleadings and evidence of parties as also to all the material circumstances having bearing on the conduct of parties, the plaintiff in particular………….

While examining a case of Specific Performance of a Contract, the Apex Court, has laid down the parameters in which circumstances the relief of specific performance can be granted. In Kamal Kumar Vs Prem Lata Joshi 2019 (1) RCR (C) 576, it was held:
10.It is a settled principle of law that, the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:

1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property;
2. Second, whether the Plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract;
3. Third, whether the Plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
4. Fourth, whether it will be equitable to grant the relief of specific performance to the Plaintiff against the Defendant in relation to suit property or it will cause any kind of hardship to the Defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the Plaintiff; and
5. lastly, whether the Plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.( Emphasis supplied by the writer )

11.The aforementioned questions are part of the statutory requirements. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts

Thus it is apparent from the above mentioned judicial pronouncements that readiness and willingness are two separate requirements, which have to be fulfilled by anyone seeking a discretionary relief of Specific Performance of his contract, and though both these phrases are used together, and are even inter mingled and sound synonymous, yet they are entirely different, always supplementing and complimenting eachother.
The said requirements of readiness and willingness, as already discussed above, are like a backbone of the contract enforceability, and not only has to be proved once or at one stage, but has to be pleaded and proved throughout, from the date of the agreement to the accumulation of a same into a decree.

A single default can change the fate of the case, whereby the discretion can be exercised by the court for refund of earnest money, or damages or simpliciter dismissal of the suit. Thus, based of the legal maxim that he who seeks equity must do equity, it can very well be said that readiness and willingness both must go hand in hand, and a single default on either side can result into fatality of the contract.

The readiness of doing doth expresse, No other but the doer's willingness -Robert Herrick

Written By: Avnish Mittal, Advocate, The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only
Email: [email protected], Ph no: Tel -9872000579