Question 2 (b)

Contract of indemnity and contract of guarantee

6 marks

Time to write
About 12 minutes

From an older CBCS paper

Question

Question 2 (b) · 6 marks

Differentiate between contract of indemnity and contract of guarantee.

Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.

Before you write

Read off the question and its marks

12 minfor 6 marks

Read from the question

  • Differentiate betweenSet the differences out in a table, basis by basis, not as two separate essays.

Write it in this order

  1. Read; underline the asks; jot your points 1 min
  2. 1 Meaning of each contract 2 marks 2 min
  3. 2 Differences 4 marks 8 min
  4. Check: every ask answered, key terms underlined 1 min

Easy marks

  • Meaning of each contract (step 1, 2 marks): a clear definition and a line on what it covers. It opens the answer, so it takes a minute or two.

Short on time? Cut step 2 short rather than leave anything out.

Try it first. About 12 minutes for 6 marks. Write it out, then open the solution.

Solution

Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.

Meaning. Under section 124, in a contract of indemnity one party undertakes to protect the other against loss, whether the loss arises from the promisor's own conduct or from what someone else does. Under section 126, in a contract of guarantee one party undertakes to carry out the promise, or meet the liability, of a third person if that person defaults: the one giving the guarantee is the surety, the one whose default is covered is the principal debtor, and the one to whom it is given is the creditor.

Picture itContract of indemnity and contract of guarantee

1Rain ruins the stored crates; the godown keeper pays Dinesh for the loss himself, as promised.

IndemnityThe promisor undertakes to make good a loss the promisee may suffer.

2Three people now: the borrower comes up empty, and his surety steps forward to answer for him.

GuaranteeThe promisor (the surety) undertakes to answer for a third person, the principal debtor, if that person fails to pay or perform what he owes to the creditor.

Differences:

BasisIndemnityGuarantee
PartiesTwo: indemnifier and indemnifiedThree: creditor, principal debtor and surety
Number of contractsOneThree: creditor–debtor, creditor–surety, and an implied one between surety and debtor
Nature of liabilityPrimarySecondary: arises only on the principal debtor's default
PurposeTo save from lossTo secure a debt or the performance of a promise
RequestThe indemnifier need not act at the indemnified's requestThe surety acts at the principal debtor's request
Right to sue third partiesThe indemnifier cannot sue third parties in his own name unless the indemnified assigns that right to himThe surety, on paying, steps into the creditor's shoes

Where the 6 marks sit

#ComponentMarks
1Meaning of each contract2
2Differences4
Total6
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