Section 43 of Indian Contract Act

43. Any one of joint promisors may be compelled to perform.— When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.

Each promisor may compel contribution.— Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.

Sharing of loss by default in contribution.— If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.

Explanation.— Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal.

Illustrations

(a) A, B and C jointly promise to pay D 3,000 rupees. D may compel either A or B or C to pay him 3,000 rupees.

(b) A, B and C jointly promise to pay D the sum of 3,000 rupees. C is compelled to pay the whole. A is insolvent, but his assets are sufficient to pay one-half of his debts. C is entitled to receive 500 rupees from A’s estate, and 1,250 rupees from B.

(c) A, B and C are under a joint promise to pay D 3,000 rupees. C is unable to pay anything, and A is compelled to pay the whole. A is entitled to receive 1,500 rupees from B.

(d) A, B and C are under a joint promise to pay D 3,000 rupees, A and B being only sureties for C. C fails to pay. A and B are compelled to pay the whole sum. They are entitled to recover it from C.

Final Thoughts

Introduction

Section 43 of the Indian Contract Act, 1872 deals with the performance of joint promises. When two or more persons jointly make a promise to someone (the promisee), this section clarifies who is responsible, how the performance is to be done, and how the liability is shared among the joint promisors.

Meaning of Joint Promise and Joint Promisors

• A joint promise is a promise made by two or more persons together to another person.
• The persons who make this joint promise are called joint promisors, and the person to whom the promise is made is called the promisee.

Example: A, B, and C jointly promise to pay ₹3,000 to D. Here, A, B, and C are joint promisors and D is the promisee.

Legal Provisions under Section 43

(a) Right of the Promisee

According to Section 43: “When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.”

This means:

• The promisee can ask any one of the joint promisors to pay or perform the entire promise.
• The promisee is not required to go to all joint promisors.
• This applies unless there is a special agreement that says otherwise.

Example: If A, B, and C jointly promise to pay ₹3,000 to D, then D can demand the whole ₹3,000 from A alone, or from B, or from C, or from all together.

(b) Right of Contribution between Joint Promisors

“Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.”

This means:

• If one joint promisor pays the whole amount, he can ask the others to pay their equal share.
• This right to claim contribution exists automatically, unless the contract says something different.

Example: C pays the full ₹3,000. He can ask A and B to pay ₹1,000 each.

(c) Sharing of Loss Due to Default

“If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.”

This means:

• If one promisor cannot pay his share, the others must share that unpaid part equally.
• This protects the promisor who ends up paying more due to another’s default.

Example: C pays full ₹3,000. A is insolvent and can pay only ₹500. C can recover ₹500 from A’s estate and the rest ₹2,500 will be shared between C and B equally. So B will pay ₹1,250.

(d) Explanation – Surety and Principal

“Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal.”

This part protects the rights of sureties (guarantors). It clarifies that:

• A surety can recover money from the principal debtor if he pays on his behalf.
• The principal cannot recover from the surety if the principal pays.

Example: If A and B are sureties for C (the principal debtor), and they are forced to pay due to C’s default, they can recover the entire amount from C.

Illustrations Given in the Act (with Explanation)

(a) A, B and C jointly promise to pay D ₹3,000. D can demand full payment from any one of them.

(b) C pays the full amount. A is insolvent and can pay only ₹500. C can recover ₹500 from A’s estate, and ₹1,250 from B.

(c) C cannot pay anything. A pays full amount. A can recover ₹1,500 from B (as A and B share C’s default equally).

(d) A and B are sureties for C, and they pay the full amount. They can recover entire ₹3,000 from C, since he is the principal debtor.

Conclusion

Section 43 of the Indian Contract Act ensures clarity, fairness, and balance in joint promises. It protects:

• The promisee by allowing recovery from any one joint promisor.
• The joint promisor by allowing equal contribution from co-promisors.
• The surety by giving him the right to recover from the principal debtor.

In simple words, this section ensures that joint responsibility does not become unfair burden on any one party.