Question 2 (e)
Surety's liability co-extensive with the principal debtor's
6 marks
- Time to write
- About 12 minutes
- Notes
- Crux notes
Question
Question 2 (e) · 6 marksThe surety's liability is co-extensive with that of the principal debtor. State why this is so.
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
Read from the question
- StateShort and exact: no long explanation.
Write it in this order
- Read; underline the asks; jot your points 1 min
- 1 Section 128 1½ marks 1 min
- 2 Reason, with the illustration 3 marks 6 min
- 3 Qualifications 1½ marks 3 min
- Check: every ask answered, key terms underlined 1 min
Easy marks
- Section 128 (step 1, 1½ marks): state the rule and its section exactly. It earns its marks before you apply it to the facts.
Short on time? Keep step 1 short. Trim steps 2 and 3 evenly rather than skip one: each is capped at its own marks.
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.
The rule. Section 128 of the Indian Contract Act, 1872: the surety's liability is co-extensive with the principal debtor's, unless it is otherwise provided by the contract.
Reason. A guarantee is a promise “to perform the promise, or discharge the liability, of a third person in case of his default. The” surety undertakes to answer for the very debt the principal debtor owes. It follows that he must be liable for the whole of that debt, no more and no less: for the principal amount together with interest and charges due from the principal debtor. Illustration to section 128: “A guarantees to B the payment of a bill of exchange by C, the acceptor”; when the bill is dishonoured by C, A is liable for the amount of the bill and also for the interest and charges due on it. Because the liability is co-extensive, the creditor need not first sue the principal debtor; on default he may proceed against the surety.
- The surety may limit his liability by agreement, for instance to a fixed amount.
- Ordinarily his liability is no greater than the principal debtor's; but a guarantee of a minor's debt binds the surety even though the minor himself is not liable.
- It ends when the debt is paid, or when the surety is discharged by variation of the contract, release of the principal debtor by the creditor, or other acts of the creditor. A discharge of the principal debtor by operation of law, as in his insolvency, does not by itself discharge the surety.
Where the 6 marks sit
| # | Component | Marks |
|---|---|---|
| 1 | Section 128 | 1.5 |
| 2 | Reason, with the illustration | 3 |
| 3 | Qualifications | 1.5 |
| Total | 6 |
Report a problemopens an email to admin@getkunji.com with the question ID850-Q2ealready filled in.