Section 42 of the Indian Contract Act, 1872 - Devolution of Joint Liabilities
Section 42 explains who must perform a joint promise when two or more persons have jointly undertaken a contractual obligation, including what happens when one or more joint promisors die.
What does Section 42 provide?
The heading of Section 42 is "Devolution of joint liabilities." It applies where two or more persons have made a joint promise. The statutory rule operates unless the contract shows a contrary intention.
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.
Meaning of devolution of joint liabilities
In this context, "devolution" means the passing of the obligation to perform a joint promise when a joint promisor dies. Section 42 identifies the persons upon whom the duty to fulfil the promise rests at different stages.
1. During the joint lives of the promisors
While all the joint promisors are alive, all of them must fulfil the joint promise, subject to any contrary intention appearing from the contract.
2. After the death of one joint promisor
If one joint promisor dies, the obligation does not automatically disappear. The representative of the deceased promisor must fulfil the promise jointly with the surviving promisor or promisors, subject to the contract and the applicable law governing the liability of the deceased person's estate.
3. After the death of the last surviving promisor
After the last survivor dies, the representatives of all the joint promisors must jointly fulfil the promise, again subject to the terms of the contract and applicable law.
Contract may show a contrary intention
The opening qualification in Section 42 is important. The statutory arrangement applies unless a contrary intention appears by the contract. Therefore, the terms of the particular agreement should be examined before determining how a joint contractual obligation devolves.
Section 42 and related provisions
Section 42 should be read with the immediately following provisions on joint promises. Section 43 deals with compelling any one of the joint promisors to perform and with contribution between joint promisors. Section 44 deals with the effect of releasing one joint promisor. Section 45 addresses devolution of joint rights.
Simple example
Suppose A, B and C jointly promise to perform a contractual obligation for D. While A, B and C are alive, the joint promise is to be fulfilled by them. If A dies, Section 42 provides, subject to a contrary contractual intention, for A's representative to join B and C in fulfilling the promise. If ultimately all the joint promisors die, their representatives jointly bear the obligation contemplated by Section 42.
Official text of the Indian Contract Act, 1872
For the current official text, amendments and statutory context, refer to the Indian Contract Act, 1872 on India Code. Section 42 appears in Chapter IV, dealing with performance of contracts.
This article is intended for general legal information. Application of Section 42 depends on the terms and facts of the particular contract.