Joint Liabilities and Joint Rights

In one line

When several people promise together, the creditor may take the whole from any one of them, that one may make the others contribute, and releasing one does not let the rest off.

In the words a student can write in an exam: section 42 of the Indian Contract Act 1872 makes joint promisors and, on death, their representatives jointly bound to fulfil the promise; section 43 allows the promisee to compel any one or more of the joint promisors to perform the whole, allows each joint promisor to compel contribution equally from the others, and makes the rest share the loss of a defaulter's share equally; section 44 provides that a release of one joint promisor does not discharge the others; and section 45 vests joint rights in the promisees jointly and, on death, in the representative of the deceased jointly with the survivors.

Why Indian law differs from English law here

This is one of the clean India versus England comparisons in the paper, and MU sets it.

In English law a joint promise was, historically, joint only. The creditor had to sue all the joint promisors together, and a release of one released all, because there was a single obligation shared among them.

The Indian Act rejected both rules. Section 43 makes the liability joint and several, so the promisee may go against any one of them for the whole; and section 44 says in terms that a release of one does not discharge the others.

The reason is practical. A rule requiring all to be sued lets one absent or untraceable promisor stall the whole claim, and a rule that a release of one releases all makes it impossible for a creditor to settle with a willing debtor without losing the rest. Indian law puts the burden of sorting out the shares on the promisors, who know their own arrangement, rather than on the promisee, who does not.

The provisions

Section 42, devolution of joint liabilities:

"When two or more persons have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and, after the death of any of them, his representative jointly with the survivor or survivors, and, after the death of the last survivor, the representatives of all jointly, must fulfil the promise."

Section 43, any one of joint promisors may be compelled to perform:

"When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.

Each promisor may compel contribution. Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.

Sharing of loss by default in contribution. If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.

Explanation. Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal."