When two or more persons promise
jointly to perform to do something for consideration it is liability of all
such persons who promised to perform or to do something. Such contractual
obligations of the promises are joint liabilities, which are governed by IndianContract Act 1872. We come across many such contracts in purchase, sale of the
immovable properties and construction sector and also administration of
partnership assets. The person who makes promise is promisor and to whom the
promise made is promisee.
Section 42 of the Indian Contract Act
deals with the situation. It does not makes any distinction between joint
promises and several promises. According to the said section in the absence of
any contrary in the contract.
1. All the persons who made promise
during their joint lives are to fulfill the promise ;
2. After the death of any of the
promisor, legal heirs representative of deceased promisor along with surviving
promisors are to fulfil the promise; and
3. After the death of the last
surviving promisor, the legal heirs, representatives of all the promisors are
bound to fulfil the promise.
But if the contract provides for any
contrary intention the liability devolves according to the contract.
The promisee may enforce the contract
against any of promisor in case of joint promise made by two or more persons,
if the terms of contract do not provide any contrary intention.However, each of
the joint promisors have a right against other promisors. They may compel the
other promisors to contribute equally or as provided in the contract for
performance of contract.
In case of any of the joint promisors
defaults in contributing towards performance the remaining joint promisors must
bear the loss arising from such default in equal shares.The section 43 of
Indian Contract Act makes it very clear that in case the surety makes an
payment on behalf of the principal, the surety is entitled to recover the same
from the principal.
The provisions of section 43 apply
where two or more persons have made a joint promise. But it does not apply in
case where two or more persons have become jointly interested by inheritance in
a contract made by a single person. When a mortgage was executed by a single
mortgagor the mortgagee suing four out of five heirs is entitled to recover
only four-fifth of the mortgaged amount from them. But if the mortgage is
executed by several mortgagors then the mortgagee can enforce the entire
liability against a part of mortgaged property. In case of joint family debts
contracted by the managing member, are the debts due for all the members of
joint family and all other joint family members are bound to repay the same but
their liability is not personal but only to the extent of joint family assets.
In case of a joint promise made by two
or more persons, the promisee may release any of joint promisors from
performing the contract. But such release does release the other promisors from
performing the contract and does nor discharge the released promisor of his
liability, responsibility to other joint promisors.
This is quite a different situation
from what we discussed earlier. Here a single person makes a promise to two or
more persons jointly. The promisor is single person and promisee are more than
one. All the joint promisees during their lifetime, on death of any of them,
the legal heirs / representative of the deceased promisee with other surviving
promisees and on death of the last surviving promisee the representatives of
all promisees jointly acquire rights to enforce the contract.
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