Question 2 OR (a)
The surety's liability is co-extensive with the principal debtor's
6 marks
- Time to write
- About 12 minutes
- Notes
- Crux notes
Question
Question 2 OR (a) · 6 marks(OR)
- “The Liability of a Surety is co-extensive with the liability of the Principal Debtor”. Comment.
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
- CommentA statement to judge: take a stand on it in your first line, and come back to it at the end.
Write it in this order
- Read; underline the asks; jot your points 1 min
- 1 Section 128 and its illustration 2 marks 3 min
- 2 Secondary liability; creditor may proceed against the surety first; defect in the document 3 marks 5 min
- 3 Qualification by contract; conclusion 1 mark 2 min
- Check: every ask answered, key terms underlined 1 min
Short on time? Trim steps 1 and 2 evenly rather than skip one: each is capped at its own marks. End with step 3 in a line or two.
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. Under section 128 of the Indian Contract Act, 1872, a surety is liable to the same extent as the principal debtor (his liability is co-extensive with the debtor's), unless the contract provides otherwise.
- The surety is liable for the whole of what the principal debtor owes, no more and no less: on the illustration to section 128, a surety for a bill of exchange is liable for the amount of the bill and also for the interest and charges that have become due on it.
- His liability is secondary in nature: he is liable only on the principal debtor's default.
- A creditor may choose to proceed against the surety first, unless there is an agreement to the contrary.
- Where the debtor cannot be held liable because of a defect in the document, the surety's liability also ceases.
Qualifications. The rule applies "unless it is otherwise provided by the contract": the surety may limit his liability, for instance to a fixed sum, and he is then liable only to that extent.
Conclusion. The statement is correct: a surety answers for the very debt of the principal debtor, to the same extent, subject to any limit fixed by the contract of guarantee.
Where the 6 marks sit
| # | Component | Marks |
|---|---|---|
| 1 | Section 128 and its illustration | 2 |
| 2 | Secondary liability; creditor may proceed against the surety first; defect in the document | 3 |
| 3 | Qualification by contract; conclusion | 1 |
| Total | 6 |
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