Also known as: vicarious performances · substituted performance · third-party performance
Written by attorneys · grounded in primary & secondary sources — see below
Performance of a contractual duty carried out by an employee, agent, or other nominee of the obligor rather than by the obligor personally. The duty involves no personal element so that the obligee receives the promised act in accordance with the contract regardless of who renders it.
Vista Manufacturing faced a sudden supply shortage after a government order. It directed its shipping agent to allocate and deliver the reduced quota of components to Valdez Steel under the existing contract. Valdez Steel accepted the agent's deliveries without objection and treated them as full satisfaction of Vista's obligation.
Sally Beauty received an exclusive distributorship contract from Nexxus. After acquisition by a competitor, Sally directed its own sales force to perform the distribution duties instead of handling them directly. Nexxus objected that the change in personnel breached the personal nature of the agreement.
Select any source to read its text and confirm it supports the definition.
Victor Vargas contracted with a supplier to haul goods by buggy on a public road after dark. He employed a driver to perform the delivery duty. The driver completed the haul, and the supplier accepted the goods as full satisfaction of Vargas's contractual obligation.
Vicarious performance occurs when the original obligor remains responsible but has an employee or agent render the promised act. Assignment transfers the rights or duties themselves to a new party. The distinction matters because many contracts permit delegation of nonpersonal duties without releasing the original obligor.
Supporting sources
Vicarious performance is not permitted when the contract or circumstances show that the obligee has a substantial interest in having the original party perform personally. Duties involving personal skill, trust, or unique qualities cannot be delegated without consent.
Supporting sources
Yes. When the obligee knowingly accepts performance rendered by the obligor's nominee as full satisfaction of the original obligation, the duty is discharged even though the obligor did not act personally.
Supporting sources
…are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position…