Section 42 of Indian Contract Act

42. Devolution of joint liabilities.— 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.

Final Thoughts

Introduction

The Indian Contract Act, 1872 governs contracts and agreements in India. One of its important sections is Section 42, which deals with joint promises and what happens when one of the joint promisors dies. This section explains how the responsibility of fulfilling a joint promise shifts from one person to another, especially in case of death.

Explanation of the Section

This section tells us who is responsible for completing a joint promise made by two or more persons if one or more of them passes away.
It states that:

• All the joint promisors are equally responsible for fulfilling the promise while they are alive.
• After the death of any one promisor, his legal representative and the surviving promisors must jointly fulfil the promise.
• When all promisors have died, then the legal representatives of all of them are responsible to fulfil the promise jointly.

The only exception is if the contract itself has a different intention written clearly, then that will apply.

Legal Meaning of “Joint Promise”

A joint promise means a promise made by two or more persons together to do something or to pay something to another person or group.

For example: If A and B promise to pay ₹10,000 to C, this is a joint promise by A and B.

Devolution of Liability Explained

While All Promisors Are Alive: All the joint promisors are equally liable. The promisee (the person to whom the promise is made) can ask any one or all of them to fulfil the promise.

After Death of One Promisor: His legal representative joins the remaining living promisors and is jointly liable.

After Death of All Promisors: All their legal representatives become jointly liable to fulfil the promise.

Illustrations (Examples)

Example 1:

A, B, and C jointly promise to pay ₹30,000 to D.

• While A, B, and C are alive, D can ask any of them to pay.
• A dies. Now, A’s son (legal representative) joins B and C to pay the amount.
• Later, B also dies. Now, A’s son and B’s daughter join C in the liability.
• Finally, C also dies. Now, legal representatives of A, B, and C together must pay ₹30,000 to D.

Example 2 (With Contrary Intention in Contract):

If the contract clearly says that only A will be responsible in case of any default, then Section 42 will not apply, and only A (or his legal representative) will be liable, not B or C.

Important Points to Remember

• Section 42 applies only when the promise is joint, not separate.
• The liability is joint, not individual.
• If there is a specific clause in the contract saying otherwise, that will be followed.
• Legal representatives are not personally liable beyond the property they inherit from the deceased promisor.

Conclusion

Section 42 of the Indian Contract Act ensures that a joint promise does not end or fail just because one of the persons making the promise dies. It provides a legal method to transfer the responsibility to legal heirs and surviving promisors. This keeps the promise enforceable, protecting the interest of the person to whom the promise was made. In short, it helps maintain fairness and continuity in contractual obligations.