If
two or more persons have made a joint promise, ordinarily all of them during
their life-time must jointly fulfill the promise. After death of anyone of
them, his legal representative jointly with the survivor or survivors should do
so (See. 42). After the death of the last survivor the legal representatives of
all the original co-promisors must fulfil the promise. For example, X, Y and Z
who had jointly borrowed money must, during their life-time jointly repay the
debt. Upon the death of X his representative, say, S along with Y and Z should
jointly repay the debt and so on. This rule is applicable only if the contract
reveals no contrary intention.
We
have seen that Section 42 deals with voluntary discharge of obligations by
joint promisors. But if they do not discharge their obligation on their own
volition, what will happen? This is what Section 43 resolves. Accordingly,
(i)
when two or more persons make a joint promise, the Promisee may, in the absence
of express agreement to the contrary, compel anyone or more of such joint
promisors to perform the whole of the promise.
(ii)
If one of the joint promisors is made to perform the whole contract, he can
call for a contribution from others. For example, A, B and C jointly execute a
promissory note for Rs. 3,000 in favour of D. A is compelled to pay the whole
amount. A, in such a case would be able to realise Rs. 1,000 each from B and C.
This rule may, however, be modified by mutual agreement between the joint
Promisors
(iii)
If any of the joint promisors makes a default in making his contribution the
remaining joint promisors must bear the loss arising from such a default in
equal shares. In the above example, where A, B and C jointly executed the
promissory note for Rs. 3,000 and if C was unable to pay anything, then A would
be able to realise from B by way of contribution Rs. 1,500 instead of Rs.
1,000.
We
thus observe that the effect of Section 43 is to make the liability in the
event of a joint contract, both joint & several, in so far as the promisee
may, in the absence of a contract to the contrary, compel anyone or more of the
joint promisors to perform the whole of the promise. The effect of release of
one of the joint promisors is dealt with in Section 44 which is stated below:
Where
two or more persons have made a joint promise, a release of one of such joint
promisors by the promisee does not discharge the other joint promisor or joint
promisors; neither does it free the joint promisors so released from
responsibility to the other joint promisor or promisors.
Courtesy:-
Legal Point Foundation
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