performance of joint promise

Joint promises may take any of the following shapes:

(i) Where several joint promisors make a promise with a single promisee, e.g., A, B, and C jointly promise to pay Rs. 3,000 to D, or

(ii) Where a single promisor makes a promise with several joint promisees, e.g., P promises to pay Rs. 3,000 to Q and R jointly, or

(iii) Where several joint propiisors make a promise with several joint promisees, e.g., A, B and C jointly promise to pay Rs. 3,000 to P, Q and R jointly.

We have earlier seen as to "Who can demand performance," and "by whom contracts must be performed," when there is an agreement between a single promisor and a single promisee. We now attempt to answer the aforesaid questions in the case of joint promisees.

Who can demand performance of joint promises? The answer to this question is found in Section 45 which provides that when a promise is made to several persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests with all the promisees jointly and a single promisee cannot demand performance. When any one of the promisees dies, the right to claim performance rests with the legal representatives of such deceased person jointly with the surviving promisees. When all the promisees are dead, the right to claim performance rests with all of them jointly and on the death of any promisee his legal representatives step into his shoes.

Illustration

A, in consideration of Rs. 5,000 lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies. The right to claim performance rests with B's representative jointly with C during C's life and after the death of C, with the representatives of B and C jointly.

It is worth noting that under the terms of the Section, if a promisor makes, the payment to one of the several joint promisees, it does not operate as a complete discharge of the debt (Govindlal vs. Firm Thakurdas).

By whom joint promises must be performed? The rules on the subject, as contained in Sections 42 to 44 of the Contract Act, are as follows:

1. All promisors must jointly fulfill the promise:

When two or more persons have made a joint promise (e.g., signed a promissory note jointly), then, unless a contrary intention appears by the contract, all such persons must jointly fulfill the promise. When any one of the joint promisors dies, his legal representatives must, jointly with the surviving promisors, fulfill the promise. On the death of all the original promisors, the legal representatives of all of them jointly must fulfill the promise (Sec. 42).

The above rule is of course subject to the following usual conditions:

(a) Contracts involving personal skill, e.g., to paint a picture, come to an end on the death of any of the joint promisors and the liability of performance does not fall on the legal repre-1 sentatives.

(b) Wherever the legal representatives are made liable to perform the promise, they are not personally liable. Their liability is limited to the assets inherited by them.

2. Any one of joint promisors may be compelled to fulfill:

When two or more persons make a joint promise, the promisee is entitled, in the absence of express agreement to the contrary, to compel any one or more of such joint promisors to fulfill the whole of the promise (Sec. 43, Para 1). In other words, according to the Section, the liability of joint promisors is "joint and several" as against the promise, unless there is a contract to the contrary. For example, A, B and C jointly promise to pay D Rs. 3,000. D may compel either A or B or C or all or any two of them to pay him Rs. 3,000.

In case-of death of original debtor, if the debt falls upon a number of heirs, promisee must bring the suit against all heirs collectively, because the liability is only joint and not several in case of co-heirs. Co-heirs are not joint promisors.

3. Right of contribution inter-se between joint promisors:

If one of several joint promisors is made to perform the whole contract, he may require equal contribution from the other joint promisors, unless a contrary intention appears from the contract (Sec. 43, Para 2). Thus, in our example, if A is compelled to pay the entire amount of Rs. 3,000, he can realize from B and C Rs. 1,000 each.

4. Sharing of loss by default in contribution:

If any one of the joint promisors makes a default in making contribution, if any, the remaining joint promisors must bear the loss arising from such default in equal shares (Sec. 43, Para 3). Thus, in our example, if A is compelled to pay the whole and C is unable to pay anything, A is entitled to receive Rs. 1,500 from B. If C's estate is able to pay one-half of his share, A is entitled to receive Rs. 500 from C's estate and Rs. 1,250 from B [Illustrations (b) and (c) to Section 43],

5. Effect of release of one joint promisor:

In case of joint promise, if one of the joint promisors is released from his liability by the promisee, his liability to the promise ceases but this does not discharge the other joint promisors from their liability; neither does it free the joint promisor so released from his liability to contribute to the other joint promisors (Sec. 44).