Performance by joint promisors
Sections 42 to 45 of the Indian Contract Act, 1872
In one minute
When two or more people make one promise together, each can be made to perform the whole of it. The promisee may pick whom to ask. The one who pays more than his share may then claim equal contribution from the others.
Releasing one promisor does not release the rest. In exams, the rule that any one can be compelled, and the contribution arithmetic, earn the marks. In real life, this is how joint borrowers and joint guarantors are chased and settle among themselves.
Exam focus
- Frequency: No data
- Usually asked as: No data
Legal provision
- Section 42: joint promisors must all fulfil the promise during their joint lives. After the death of any of them, his representative joins the survivors. After the death of the last survivor, the representatives of all fulfil it. A contrary intention in the contract prevails.
- Section 43: the promisee may, unless the contract says otherwise, compel any one or more of the joint promisors to perform the whole promise. Each promisor may compel every other to contribute equally. If one defaults in contribution, the others bear the loss in equal shares. A surety may recover from his principal.
- Section 44: a release of one joint promisor by the promisee does not discharge the others. It does not free the released promisor from his responsibility to the others.
- Section 45: where a promise is made to two or more persons jointly, the right to claim performance rests with them jointly during their lives. After the death of any of them it rests with his representative jointly with the survivors.
- Section 38 (last paragraph): an offer of performance to one of several joint promisees has the same legal effect as an offer to all of them.
Meaning and definition
Joint promisors are two or more persons who make one promise to the same promisee. The Act does not define the term. Its sections 42 to 45 show how the promise is performed, enforced and shared.
The law lets the promisee ask any one of them for the whole. This protects him from having to chase every promisor. The law then gives a right of contribution to the one who paid, so that the burden is shared fairly among the promisors. The diagram shows the relationships.
- D may compel any one or more of A, B and C to perform the whole promise (section 43).
- The promisor who pays more than his share may compel each of the others to contribute equally (section 43).
- If one of them defaults in contributing, the rest bear that loss in equal shares (section 43).
- If D releases one of them, the others are not discharged, and the released one still owes his share to the others (section 44).
Detailed explanation
Step 1: who must perform (section 42)
All the joint promisors must fulfil the promise together. When one dies, his representative takes his place alongside the survivors. When the last one dies, the representatives of all do so jointly. The contract may show a different intention.
Step 2: the promisee may choose (section 43, first paragraph)
The promisee need not sue everyone. Unless the contract says otherwise, he may compel any one or more of the joint promisors to perform the whole promise. He may sue one promisor alone, and a later suit against the others is not barred.
Example. A, B and C jointly promise to pay D Rs 3,000. D may compel A, or B, or C to pay him the whole Rs 3,000 (section 43, illustration (a)).
Step 3: contribution among the promisors (section 43, second paragraph)
Each joint promisor may compel every other to contribute equally with himself, unless the contract shows a different intention. The promisor who has paid more than his share recovers the excess from the others.
Example. A, B and C jointly promise to pay D Rs 3,000. C is unable to pay anything, and A is compelled to pay the whole. A is entitled to receive Rs 1,500 from B (section 43, illustration (c)). The shares are Rs 1,000 each. C's Rs 1,000 is the loss, and it is shared equally by A and B at Rs 500 each. So B pays his own Rs 1,000 and Rs 500 for C's default.
Step 4: sharing a loss from default (section 43, third paragraph)
If any joint promisor makes default in his contribution, the remaining promisors bear the loss in equal shares.
Example. A, B and C jointly promise to pay D Rs 3,000. C is compelled to pay the whole. A is insolvent, but his assets are enough to pay half of his debts. C receives Rs 500 from A's estate and Rs 1,250 from B (section 43, illustration (b)). A's share is Rs 1,000. His estate pays Rs 500. The shortfall of Rs 500 is shared by B and C at Rs 250 each. So B owes his Rs 1,000 and Rs 250 for A's default.
The Explanation to section 43 protects a surety. A surety may recover from his principal what he paid for the principal. The principal cannot recover from the surety anything he paid himself. In illustration (d), A and B are only sureties for C. C fails to pay and A and B are compelled to pay the whole. They may recover it from C.
Step 5: release of one promisor (section 44)
If the promisee releases one joint promisor, the others stay liable. The released promisor is still responsible to the others for his share.
Example. P, Q and R jointly owe L Rs 90,000. L releases Q. P and R remain liable for the whole. If P pays the whole, he can still claim contribution from Q for his share.
Step 6: joint promisees (sections 45 and 38)
Where the promise is made to several persons jointly, the right to claim performance rests with them jointly. When one dies, it rests with his representative jointly with the survivors. An offer of performance to one of several joint promisees has the same effect as an offer to all.
Example. A borrows Rs 5,000 from B and C and promises to repay them jointly with interest on a fixed day. B dies. The right to claim repayment rests with B's representative jointly with C. After C's death it rests with the representatives of B and C jointly (section 45, illustration).
Step 7: payment made twice by mistake (section 72)
A person to whom money is paid by mistake must repay it. A and B jointly owe Rs 100 to C. A alone pays C. B, not knowing this, pays Rs 100 over again. C must repay B (section 72, illustration (a)).
Sections 42 to 45 at a glance
| Section | Subject | Rule |
|---|---|---|
| 42 | Joint liabilities | All must perform together. On death, the representative joins the survivors |
| 43 | Compelling performance and contribution | The promisee may compel any one. The payer claims equal contribution. A defaulter's loss is shared equally |
| 44 | Release of one | The others stay liable. The released one still owes contribution |
| 45 | Joint rights | The right rests with joint promisees jointly. On death it passes to the representative with the survivors |
Don't confuse: the Indian rule and the English common law rule
Under the English common law rule, joint debtors had to be sued together, and a release of one released all. Sections 43 and 44 reject both points. Indian law also differs from a set of separate (several) promises.
| Point | Indian Contract Act | English common law rule |
|---|---|---|
| Whom may the promisee sue | Any one or more, for the whole (section 43) | All the joint promisors together |
| Release of one | The others are not discharged (section 44) | The release of one released all |
Inside the idea. A, B and C jointly promise to pay D Rs 3,000. D sues A alone for all Rs 3,000. Under section 43 this is allowed.
Just outside it. A, B and C separately promise to pay D Rs 1,000 each. These are three separate promises. D can claim only Rs 1,000 from each of them.
Common mistakes
- Saying the promisee must sue all the joint promisors. Section 43 lets him sue any one or more.
- Saying a release of one releases all. Section 44 says the others are not discharged.
- Forgetting that contribution is equal unless the contract shows otherwise.
- Forgetting that a defaulter's share is borne equally by the others.
Apply it
Problem
P, Q and R jointly borrow Rs 90,000 from L. R is insolvent and his estate can pay only half of his share. L compels P to pay the whole Rs 90,000. How much can P recover, and from whom?
Issue. What contribution may P claim from Q and from R's estate?
Rule. The promisee may compel any joint promisor to perform the whole. The payer may compel the others to contribute equally. If one defaults in contribution, the rest bear the loss equally (section 43).
Application. Each share is Rs 30,000. R's estate pays half his share, Rs 15,000. The shortfall of Rs 15,000 is shared equally by P and Q, Rs 7,500 each. P bears Rs 30,000 plus Rs 7,500, which is Rs 37,500.
Conclusion. P recovers Rs 52,500 in all: Rs 15,000 from R's estate and Rs 37,500 from Q. If L had released Q, P could still claim Q's contribution, because a release does not free Q from responsibility to the others (section 44).
Leading case laws
- S.P. Abraham Servai v. Raphial Muthirian (1914)
Facts. Two persons executed a joint promissory note. The creditor sued both. The Madras High Court decreed the whole amount against the plaintiff and held the other promisor free because the claim against him was barred by limitation. The plaintiff then sued that promisor for contribution.
Principle. A promisor's duty to contribute to the other joint promisors is separate from his duty to pay the creditor. It is not lost because the creditor can no longer claim against him.
Why it matters. It confirms that the right of contribution under section 43 stands apart from the creditor's claim.
- Mannava Annapurnamma v. Uppala Akkayya (1912)
Facts. The Madras High Court considered whether a payment accepted by one of several joint promisees discharges the whole debt owed to them.
Principle. A payment or an offer of performance accepted by one joint promisee binds all the joint promisees and discharges the debt.
Why it matters. It applies the rule in the last paragraph of section 38 to joint promisees.
How to write this answer in the exam
5-mark answer
- Define joint promisors and state section 42.
- State section 43: the promisee may compel any one for the whole.
- State the right of contribution and the sharing of a defaulter's loss.
- State section 44: release of one does not discharge the others.
10-mark answer
- Meaning and the reason for the rules.
- Section 42 and devolution on death.
- Section 43 with illustrations (a), (b) and (c), and the surety explanation.
- Section 44 and release.
- Section 45 and joint promisees.
- Comparison with the English common law rule, and a short conclusion.
Key points to remember
- Joint promisors must perform together, and on death the representative joins the survivors (section 42).
- The promisee may compel any one or more of them to perform the whole (section 43).
- Each promisor may claim equal contribution from the others, unless the contract shows otherwise.
- A defaulter's share of the loss is borne equally by the rest.
- Release of one joint promisor does not discharge the others or free him from contribution (section 44).
- Joint promisees hold the right jointly, and it passes to representatives with the survivors (section 45).
Quick self-test
1. Must the promisee sue all the joint promisors together?
No. He may compel any one or more of them to perform the whole promise (section 43).
2. What is the effect of releasing one joint promisor?
The others are not discharged, and the released promisor still owes his share to them (section 44).
3. A, B and C jointly owe Rs 3,000. C cannot pay and A pays the whole. What can A recover from B?
Rs 1,500. B's own share is Rs 1,000. He also bears half of C's unpaid Rs 1,000 (section 43, illustration (c)).