Performance of a contract is a vast topic, covering time, place and manner of performance payment appropriation and the like. Here, it is proposed to concentrate on one point which is of special interest in the context of Sri Lankan law, namely, "tender of performance". "Tender" means offer of performance. It must be made at the time and place agreed upon. The offer of performance must be unconditional. The importance of tender has been highlighted by the observation of one writer, that "tender is the instinctive resource of the oppressed, against the exactions of the relentless and it is for the person sought to be victimsed to make proper use of this resource" (Harris on Tender, page 1 cited by Mr. Justice Soertz in Fernando v. Coomaraswamy, (1940) 41 NLR R 466, 473].
Where the obligation is to pay money, tender does not in itself discharge the obligation but precludes a claim for interest, either in English law or in Roman Dutch law (Weeramantry, page 671). Tender must be made of the full amount due. Otherwise the creditor is not bound to accept. Tender should be unconditional. However, the law does not compel performance of that which has no utility avail. (lex non cogit ad inutilia). Hence, where the creditor has in anticipation, already refused to accept payment from the debtor then no further tender is necessary. [Sideek v. Sainambu Natchiya, 55 NLR 367].
An interesting aspect of Roman Dutch law is the process of judicial deposit (consignatie), offering effective protection to a debtor who wishes to pay, where the creditor refuses to accept payment. By this procedure a debtor who considers that the creditors claim is excessive or unwarranted can make a judicial deposit (Weeramantry, page 675). The relevant provision is contained in section 409 of the Code of Civil Procedure of Sri Lanka, which covers deposits by the defendant as well as by the plaintiff. The object of a judicial deposit is to enable a debtor to protect himself against (i) interest, (ii) costs, and (iii) other consequences of default. After the deposit is made, delay in court procedure does not affect the plaintiff, the maxim being cursus curiae neminem gravabit.
