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Contract of Indemnity
Objectives of study are:
Meaning of Indemnity. Nature and Scope of Indemnity. Distinction between Indemnity and other Specific contracts. Indemnity under English and US Law.
Introduction:
Literal Meaning: Indemnity means Insurance or Security or Protection.
Principle: Indemnity is an obligation by a person ( indemnitor/indemnifier ) to
provide compensation for a particular loss suffered by another person
( indemnitee/indemnity holder ).
Indemnities form the basis of many insurance contracts; for example, a car owner may
purchase different kinds of insurance as an indemnity for various kinds of loss arising from
operation of the car, such as damage to the car itself, or medical expenses following an
accident.
In an agency context, a principal may be obligated to indemnify their agent for liabilities
incurred while carrying out responsibilities under the relationship. While the events giving
rise to an indemnity may be specified by contract, the actions that must be taken to
compensate the injured party are largely unpredictable, and the maximum compensation is
often expressly limited.
In the old English law, Indemnity was defined as “a promise to save a person harmless from
the consequences of an act. Such a promise can be express or implied from the circumstances
of the case”.
This view was illustrated in the case of Adamson vs Jarvis 1872. In this case, the plaintiff, an auctioneer, sold certain goods upon the instructions of a person. It turned out that the goods did not belong to the person and the true owner held the auctioneer liable for the goods. The auctioneer, in turn, sued the defendant for indemnity for the loss suffered by him by acting on his instructions. It was held that since the auctioneer acted on the instructions of the defendant, he was entitled to assume that if, what he did was wrongful, he would be indemnified by the defendant.
This gave a very broad scope to the meaning of Indemnity and it included promise of indemnity due to loss caused by any cause whatsoever. Thus, any type of insurance except life insurance was a contract of Indemnity. However, Indian contract Act 1872 makes the scope narrower by defining the contract of indemnity as follows:
Section 124 - A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person is a "contract of Indemnity".
Illustration - A contracts to indemnify B against the consequences of any proceedings which C may take against B in respect of a certain sum of Rs 200. This is a contract of indemnity.
This definition provides the following essential elements –
- There must be a loss.
- The loss must be caused either by the promisor or by any other person (in Indian context loss is to be caused by only by a human agency.)
- Indemnifier is liable only for the loss. Thus, it is clear that this contract is contingent in nature and is enforceable only when the loss occurs.
Rights of Indemnifier:
After compensating the indemnity holder, indemnifier is entitled to all the ways and means by which the indemnifier might have protected himself from the loss. Relevant Case Laws
Rights of the indemnity holder:
Section 125 , defines the rights of an indemnity holder. These are as follows - The promisee (Indemnity holder) in a contract of indemnity, acting within the scope of his authority, is entitled to recover from the promisor (Indemnifier). These are:
1. Right of recovering Damages - all damages that he is compelled to pay in a suit in respect of any matter to which the promise of indemnity applies. 2. Right of recovering Costs - all costs that he is compelled to pay in any such suit if, in bringing or defending it, he did not contravene the orders of the promisor and has acted as it would have been prudent for him to act in the absence of the contract of indemnity, or if the promisor authorized him in bringing or defending the suit. 3. Right of recovering Sums - all sums which he may have paid under the terms of a compromise in any such suite, if the compromise was not contrary to the orders of the promisor and was one which would have been prudent for the promisee to make in the absence of the contract of indemnity, or if the promisor authorized him to compromise the suit. Some of the important conditions which he ought to follow here are viz; that as per this section, the rights of the indemnity holder are not absolute or unfettered. He must act within the authority given to him by the promisor and must not contravene the orders of the
Some Illustrations on contract of Indemnity under English Law are as follows:
Under section 4 of the Statute of Frauds (1677), a "guarantee" which means “an undertaking of secondary liability; to answer for another's default must be evidenced in writing. No such formal requirement exists in respect of indemnities which involves the assumption of primary liability; to pay irrespective of another's default ,which are enforceable even if made orally. (Ref: Peel E: Treitel, The Law of Contract")
Under current English law, indemnities must be clearly and precisely worded in the contract in order to be enforceable. Under the Unfair Contract Terms Act 1977 , Section 4, says that a consumer cannot be made to unreasonably indemnify another for their breach of contract or negligence. Contract award.
In England and Wales an "indemnity" monetary award may form part of rescission (the revocation, cancellation, or repeal of a law, order, or agreement) during an action of restitutio in integrum (restoration of an injured party to the situation which would have prevailed had no injury been sustained; restoration to the original or pre-contractual position). The property and funds are exchanged, but indemnity may be granted for costs necessarily incurred to the innocent party pursuant to the contract. The leading case on this point is Whittington v Seale-Hayne , in which a contaminated farm was sold. The contract made the buyers renovate the real estate and, the contamination incurred medical expenses for their manager, who had fallen ill. Once the contract was rescinded, the buyer could be indemnified for the cost of renovation as this was necessary to the contract, but not the medical expenses as the contract did not require them to hire a manager. Were the sellers at fault, damages would clearly be available.
The distinction between indemnity and damages is subtle which may be differentiated by considering the roots of the law of obligations.
Question arises how can money be paid where the defendant is not at fault? The contract before rescission (the revocation, cancellation, or repeal of a law, order, or agreement) is voidable but not void, so, for a period of time, there is a legal contract. During
between the indemnifier and the indemnity holder. an original contract between Creditor and Principal Debtor, a contract of guarantee between creditor and surety, and an implied contract of indemnity between the surety and the principal debtor.
The reason for a contract of indemnity is to make good on a loss if there is any.
The reason for a contract of guarantee is to enable a third person get credit.
Once the indemnifier fulfills his liability, he does not get any right over any third party. He can only sue the indemnity-holder in his own name.
Once the guarantor fulfills his liabilty by paying any debt to the creditor, he steps into the shoes of the creditor and gets all the rights that the creditor had over the principal debtor.
that time, both parties have legal obligation. If the contract is to be void ab initio the
obligations performed must also be compensated. Therefore, the costs of indemnity arise
from the (transient and performed) obligations of the claimant rather than a breach of
obligation by the defendant.
This distinction between indemnity and guarantee was discussed as early as the eighteenth
century in Birkmya v Darnell. In that case, concerned with a guarantee of payment for goods
rather than payment of rent, the presiding judge explained that a guarantee effectively says
"Let him have the goods; if he does not pay you, I will."
Distinction from warranties :
An indemnity is distinct from a warranty in that:
a) An indemnity guarantees compensation equal to the amount of loss subject to the indemnity, while a warranty only guarantees compensation for the reduction in value of the acquired asset due to the warranted fact being untrue (and the beneficiary must prove such diminution in value). b) Warranties require the beneficiary to mitigate their losses, while indemnities do not. c) Warranties do not cover problems known to the beneficiary at the time the warranty is given, while indemnities do.
Thus in nutshell we have understood that
i) Contracts of Indemnity has been defined as: "A Contract whereby one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person, is called a contract of indemnity ." ii) The term is often used in business contracts and in insurance. iii) Indemnity, in simple words, is protection against future loss. iv) The term 'Indemnity Agreement' is often used in the US. v) Contract of Indemnties should all satisfy the conditions of a valid contract. vi) All Contracts of Insurance are Contracts of Indemnity except life insurance. vii) The indemnity holder can call upon the indemnifier to save him from loss even before the actual loss is incurred.
is good consideration, illustration (c) of Section 127 of the ICA, 1872 seems to negate this
point. Those who favor the validity of past consideration state that law is not supposed to be
guided by illustrations. But there have been conflicting judgments about whether past
consideration is good consideration. Illustration:
B requests A to sell and deliver to him goods on credit. A agrees to do so, provided C will
guarantee the payment of the price of the goods. C promises to guarantee the payment in
consideration of A’s promise to deliver the goods. This deemed sufficient consideration for
C’s promise.
Illustration: A sells and delivers goods to B. C afterwards requests A to forbear to sue B for
the debt for a year, and promises that, if he does so, C will pay for them in default of payment
by B. A agrees to forbear as requested. This is a sufficient consideration for C’s promise. Illustration: A sells and delivers goods to B. C afterwards, without consideration, agrees to
pay for them in default of B. The agreement is void.
The most basic function of a contract of guarantee is to enable a person to get a job, a loan or
some goods as the case may be. In case, a person is desirous of buying a car on a hire-
purchase agreement by making monthly payments over a period of time but the car dealer
asks for guarantee. Then someone would have to assure him that he will make the monthly
payments in case of default by the person who is buying the care. Such an undertaking results
in a contract of surety ship or guarantee. Guarantee is security in form of a right of action against a third party called the surety or the guarantor.
ESSENTIALS OF CONTRACT OF GUARANTEE
- Essentials of a valid contract: Since Contract of Guarantee if a species of a contract,
the general principles governing contracts are applicable here. There must be free consent, a legal objective to the contract, etc. Though all the parties must be capable of entering into a contract, the principal debtor may be a party incompetent to contract, ie., a minor. This scenario is discussed later in this chapter.
- A principal debt must pre-exist: A contact of gurantee seeks to secure payment of a debt, thus it is necessary there is a recoverable debt. There can not be a contract to guarantee a time barred debt.
- Consideration received by the principal debtor is sufficient for the surety. Anything
done, or any promise made for the benefit of the principal debtor can be taken as sufficient consideration to the surety for giving guarantee.
NATURE OF CONTRACT OF GUARANTEE
The contract of guarantee has to be clear. A letter clearly stating the intention to guarantee a
transaction will go on smoothly or one will behave appropriately conduct himself at work
place will suffice. But a promise to pay extra attention or to take care of it does not constitute
a guarantee.
In India, a contract of guarantee may be oral or written. It may even be inferred from the
course of conduct of the parties concerned. Under English Law, a guarantee is defined as a
promise made by one person to another to be collaterally answerable for the debt, default or
miscarriage of the third persons and has to be in writing.
There are three parties in a contract of guarantee; the creditor, the principal debtor and the
surety. In a contract of guarantee, there are two contracts; the Principal Contract between the
principal debtor and the creditor as well as the Secondary Contract between the creditor and
the surety. The contract of the surety is not contract collateral to the contract of the principal debtor but is an independent contract. Liability of surety is secondary and arises when
principal debtor fails to fulfill his commitments. Even an acknowledgement of debt by the
principal debtor will bind the surety.
It is not essential that the Principal Contract must be in place/existence at the time of the
Contract of Guarantee being made. The original contract between the debtor and the creditor
may be about to come into existence. Similarly, in certain situations, a surety may be called
upon to pay though the principal debtor is not liable at all. For example, in cases where the
principal debtor is a minor, the surety will be liable though the minor will not be personally liable.
A contract of guarantee is to be enforced according to the terms of the contract.
A guarantee is a contract of s trictissima juris that means liability of surety is limited by law; a
surety is offered protection by law and is treated as a favored debtor in the eyes of the law. A
contract of guarantee is not a contract ‘uberrimae fidei’ (requiring of utmost good faith). Still
the suretyship relationship is one of trust and confidence and the validity of the contract
depends upon the good faith of the creditor. However, it is not a part of the creditor’s duty to
inform the surety about all his previous dealings with the principal debtor. In WYTHES vs. LABON CHARE 1858 , Lord Chelmsford held that the creditor is not bound to
inform the matters affecting the credit of the debtor or any circumstances unconnected with
the transaction in which he is about to engage which will render his position more hazardous.
Since it is based on good faith, a contract of guarantee becomes invalid if the guarantee is
obtained from the surety by misrepresentation or concealment as given in Sections 142 and
143 of the ICA, 1872.
Illustration: If a clerk in an office occasionally fails to account for some of the receipts for money
collected, he may be asked for surety. In case the person who steps up to be a surety for the
clerk in the office is not informed of the occasional lapses on part of the clerk which lead to
the requirement of a surety, any guarantee given by him is invalid as something of
importance and directly affecting his decision to act as a surety was concealed from him.
Illustration: A guarantees to C payment for iron to be supplied by him to B to the amount of 2,000 tons. B
and C have privately agreed that B should pay ` five per ton beyond the market price, such
excess to be applied in liquidation of an old debt. This agreement is concealed from A. A is
not liable as a surety.
But where the surety ship is with regard to an advance to be made by a bank, the bank need
not disclose past indebtedness to the surety unless it relates to the particular transaction.
It is pertinent to note that there is no uniformity on the issue of past consideration. In the case of Allahabad Bank vs S M Engineering Industries 1992 Cal HC , the bank was not allowed to sue the surety in absence of any advance payment made after the date of guarantee. But in the case of Union Bank of India vs A P Bhonsle 1991 Mah HC , past debts were also held to be recoverable under the wide language of this section. In general, if the principal debtor is benefitted as a result of the guarantee, it is sufficient consideration for the sustenance of the guarantee.
It should be without misrepresentation or concealment –
Section 142 specifies that a guarantee obtained by misrepresenting facts that are material to the agreement is invalid, and section 143 specifies that a guarantee obtained by concealing a material fact is invalid as well.
Illustrations : -
- A appoints B for collecting bills. B fails to account for some of the bills. A asks B to get a guarantor for further employment. C guarantees B's conduct but C is not made aware of B previous mis-accounting by A. B, afterwards, defaults. C cannot be held liable.
- A promises to sell Iron to B if C guarantees payment. C guarantees payment however, C is not made aware of the fact that A and B had contracted that B will pay 5 Rs higher that the market prices. B defaults. C cannot be held liable.
In the case of London General Omnibus vs Holloway 1912 , a person was invited to guarantee an employee, who was previously dismissed for dishonesty by the same employer. This fact was not told to the surety. Later on, the employee embezzled funds but the surety was not held liable.
Continuing Guarantee:
As per section 129 , a guarantee which extends to a series of transactions is called a continuing guarantee.
Illustrations –
- A, in consideration that B will employ C for the collection of rents of B's zamindari, promises B to be responsible to the amount of 5000/- for due collection and payment by C of those rents. This is a continuing guarantee.
- A guarantees payment to B, a tea-dealer, for any tea that C may buy from him from time to time to the amount of Rs 100. Afterwards, B supplies C tea for the amount of 200/- and C fails to pay. A's guarantee is a continuing guarantee and so A is liable for Rs 100.
- A guarantees payment to B for 5 sacks of rice to be delivered by B to C over the period of one month. B delivers 5 sacks to C and C pays for it. Later on B delivers 4 more sacks but C fails to pay. A's guarantee is not a continuing guarantee and so he is not liable to pay for the 4 sacks. Thus, it can be seen that a continuing guarantee is given to allow multiple transactions without having to create a new guarantee for each transaction.
In the case of Nottingham Hide Co vs Bottrill 1873 , it was held that the facts, circumstances, and intention of each case has to be looked into for determining if it is a case of continuing guarantee or not.
Revocation of Continuing Guarantee:
- As per section 130 , a continuing guarantee can be revoked at any time by the surety by notice to the creditor.
Once the guarantee is revoked, the surety is not liable for any future transaction however he is liable for all the transactions that happened before the notice was given.
Illustrations –
- A promises to pay B for all groceries bought by C for a period of 12 months if C fails to pay. In the next three months, C buys 2000/- worth of groceries. After 3 months, A revokes the guarantee by giving a notice to B. C further purchases 1000 Rs of groceries. C fails to pay. A is not liable for 1000/- rs of purchase that was made after the notice but he is liable for 2000/- of purchase made before the notice.
This illustration is based on the old English case of Oxford vs Davies.
In the case of Lloyd's vs Harper 1880 , it was held that employment of a servant is one transaction. The guarantee for a servant is thus not a continuing guarantee and cannot be revoked as long as the servant is in the same employment. However, in the case of Wingfield vs De St Cron 1919 , it was held that a person who guarateed the rent payment for his servant but revoked it after the servant left his employment was not liable for the rents after revocation.
- A guarantees to B, to the amount of 10000 Rs, that C shall pay for the bills that B may draw upon him. B draws upon C and C accepts the bill. Now, A revokes the guarantee. C fails to pay the bill upon its maturity. A is liable for the amount upto 10000Rs.
- As per section 131 , the death of the surety acts as a revocation of a continuing guarantee with regards to future transactions, if there is no contract to the contrary.
It is important to note that there must not be any contract that keeps the guarantee alive even after the death. In the case of Durga Priya vs Durga Pada AIR 1928 , Cal HC held that in each case the contract of guarantee between the parties must be looked into to determine whether the contract has been revoked due to the death of the surety or not. If there is a provision that says death does not cause the revocation then the constract of guarantee must be held to continue even after the death of the surety.
What are the Rights of the Surety?
A contract of guarantee being a contract, all rights that are available to the parties of a contract are available to a surety as well. The following are the rights specific to a contract of guarantee that are available to the surety.
Rights against principal debtor
1. Right of Subrogation:
As per section 140 , where a guaranteed debt has become due or default of the principal debtor to perform a duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor. This means that the surety steps into the shoes of the creditor. Whatever rights the creditor had, are now available to the surety after paying the debt.
In the case of Lampleigh Iron Ore Co Ltd, Re 1927 , the court has laid down that the surety will be entitled, to every remedy which the creditor has against the principal debtor; to enforce every security and all means of payment; to stand in place of the creditor to have the securities transferred in his name, though there was no stipulation for that; and to avail himself of all those securities against the debtor. This right of surety stands not merely upon contract but also upon natural justice.
A as surety for B makes a bond jointly with B to C to secure a loan from C to B. Afterwards, C obtains from B a further security for the same debt. Subsequently, C gives up the further security. A is not discharged.
This section recognizes and incorporates the general rule of equity as expounded in the case of Craythorne vs Swinburne 1807 that the surety is entitled to every remedy which the creditor has against the principal debtor including enforcement of every security. The expression "security" in section 141 means all rights which the creditor had against property at the date of the contract. This was held by the SC in the case of State of MP vs Kaluram AIR 1967. In this case, the state had sold a lot of felled trees for a fixed price in four equal instalments, the payment of which was guaranteed by the defendant. The contract further provided that if a default was made in the payment of an instalment, the State would get the right to prevent further removal of timber and the sell the timber for the realization of the price. The buyer defaulted but the State still did not stop him from removing further timber. The surety was then sued for the loss but he was not held liable. It is important to note that the right to securities arises only after the creditor is paid in full. If the surety has guaranteed only part of the debt, he cannot claim a proportional part of the securities after paying part of the debt. This was held in the case of Goverdhan Das vs Bank of Bengal 1891.
2. Right of set off.
If the creditor sues the surety, the surety may have the benefit of the set off, if any, that the principal debtor had against the creditor. He is entitled to use the defences that the principal debtor has against the creditor. For example, if the creditor owes the principal debtor something, for which the principal debtor could have counter claimed, then the surety can also put up that counter claim.
Rights against co-sureties.
1. Effect of releasing a surety As per section 138 , Where there are co-sureties, a release by the creditor of one of them does not discharge the others; neither does it free the surety so released from his responsibility to the other sureties. A creditor can release a co-surety at his will. However, as held in the case of Sri Chand vs Jagdish Prashad 1966 , the released co-surety is still liable to the others for contribution upon default. 2. Right to contribution:
As per section 146 , where two or more persons are co-sureties for the same debt jointly or severally, with or without the knowledge of each other, under same or different contracts, in the absence of any contract to the contrary, they are liable to pay an equal share of the debt or any part of it that is unpaid by the principal debtor.
Illustrations –
a. A, B, and C are sureties to D for a sum of 3000Rs lent to E. E fails to pay. A, B, and C are liable to pay 1000Rs each. b. A, B, and C are sureties to D for a sum of 1000Rs lent to E and there is a contract among A B and C that A and B will be liable for a quarter and C will be liable for half the amount upon E's default. E fails to pay. A and B are liable for 250Rs each and C is liable for 500Rs.
As per section 147 , co-sureties who are bound in different sums are liable to pay equally as far as the limits of their respective obligations permit.
Illustrations –
- A, B and C as sureties to D, enter into three several bonds, each in different penalty, namely A for 10000Rs, B for 20000 Rs, and C for 30000Rs with E. D makes a default on 30000Rs. All of them are liable for 10000Rs each.
- A, B and C as sureties to D, enter into three several bonds, each in different penalty, namely A for 10000Rs, B for 20000 Rs, and C for 40000Rs with E. D makes a default on 40000Rs. A is liable for 10000Rs while B and C are liable for 15000Rs each..
- A, B and C as sureties to D, enter into three several bonds, each in different penalty, namely A for 10000Rs, B for 20000 Rs, and C for 40000Rs with E. D makes a default on 70000Rs. A, B and C are liable for the full amount of their bonds. Discharge of Surety from Liability: A surety is said to be discharged from liability when his liability comes to an end. Indian Contract Act 1872 specifies the following conditions in which a surety is discharged of his liability - 1. Section 130 - By a notice of revocation - discussed above. 2. Section 131 - By death of surety - discussed above. 3. Section 133 - By variance in terms of contract - A variance made without the consent of the surety in terms of the contract between the principal debtor and the creditor, discharges the surety as to the transactions after the variance.
Illustrations : a) A becomes a surety to C for B's conduct as manager in C's bank. Afterwards, B and C contract without A's consent that B's salary shall be raised and that B shall be liable for 1/4th of the losses on overdrafts. B allows a customer to overdraft and the bank loses money. A is not liable for the loss.
b) A guarantees C against the misconduct of B in an office to which B is appointed by C. The conditions of employment are defined in an act of legislature. In a subsequent act, the nature of the office is materially altered. B misconducts. A discharged by the change from the future liability of his guarantee even though B's misconduct is on duty that is not affected by the act.
c) B appoints C as a salesperson on a fixed yearly salary upon A's guarantee on due account of sales by C. Later on, without A's consent, B and C contract that C will be paid on commission basis. A is not liable for C's misconduct after the change.
d) C promises to lends 5000Rs to B on 1st March. A guarantee the repayment. C gives the money to B on 1st January. A is discharged of his liability because of the variance in as much as C may decide to sue B before 1st march.
4. Section 134 - By discharge of principal debtor - The surety is discharged by any contract between the creditor and the principal debtor by which the principal debtor is discharged; or by any action of the creditor the legal consequence of which is the discharge of the principal debtor. Illustrations : x) A gives a guarantee to C for goods to be delivered to B. Later on, B contracts with C
q) A appoints M as an apprentice upon getting a guarantee of M's fidelity by B. A also promises that he will at least once a month see M make up the cash. A fails to do this. M embezzles. B is discharged of his suretyship.
r) A lends money to B with C as surety. A also gets as a security the mortgage to B's furniture. B defaults and A sells his furniture. However, due to A's carelessness very small amount is received by sale of the furniture. C is discharged of the liability. State of MP vs Kaluram - Discussed above.
In the case of State Bank of Saurashtra vs Chitranjan Ranganath Raja 1980 , the bank failed to properly take care of the contents of a go-down pledged to it against a loan and the contents were lost. The court held that the surety was not liable for the amount of the goods lost.
Creditor's duty is not only to take care of the security well but also to realize it proper value. Also, before disposing of the security, the surety must be informed on the account of natural justice so that he can have the option to take over the security by paying off the debt. In the case of Hiranyaprava vs Orissa State Financial Corp AIR 1995 , it was held that if such a notice of disposing off of the security is not given, the surety cannot be held liable for the shortfall.
However, when the goods are merely hypothecated and are in the custody of the debtor, and if their loss is not because of the creditor, the surety is not discharged of his liability.
Extent of Surety's Liability:
As per section 128 , the liability of a surety is co-extensive with that of the principal debtor, unless it is otherwise provided in the contract.
Illustration –
A guarantees the payment of a bill by B to C. The bill becomes due and B fails to pay. A is liable to C not only for the amount of the bill but also for the interest. This basically means that although the liability of the surety is co-extensive with that of the principal debtor, he may place a limit on it in the contract. Co-extensive implies the maximum extent possible. He is liable for the whole of the amount of the debt or the promises. However, when part of a debt was recovered by disposing off certain goods, the liability of the surety is also reduced by the same amount. This was held in the case of Harigopal Agarwal vs State Bank of India AIR 1956.
The surety can also place conditions on his guarantee. Section 144 says that where a person gives guarantee upon a contract that the creditor shall not act upon it until another person has joined it as co-surety, the guarantee is not valid if the co-surety does not join. In the case of National Provincial Bank of England vs Brakenbury 1906 , the defendant signed a guarantee which was supposed to be signed by three other co-sureties. One of them did not sign and so the defendant was not held liable. Similarly, a surety may specify in the contract that his liability cannot exceed a certain amount. However, where the liability is unconditional, the court cannot introduce any conditions. Thus, in the case of Bank of Bihar Ltd. vs Damodar Prasad AIR 1969 , SC overruled
trial court's and high court's order that the creditor must first exhaust all remedies against the principal debtor before suing the surety.
Points to Note
There are three parties in every Contract of Guarantee The liability arises right from the beginning. The surety becomes liable when the principle debtor commits default in meeting the liability. Surety has the right to sue the third party (Principle Debtor) directly. The Law puts him in the position of Creditor. Where as in Contracts of Indemnity, the Indemnifier cannot sue the third party in his name. He has to sue in the name of the Indemnity-holder or after obtaining the rights from him. Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee. The guarantor need not personally derive any benefit from the guarantee. The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. The creditor can straightway proceed against the guarantor without first proceeding against the principal debtor. The liability of the surety can never be greater than that of the principal debtor. The surety can however may restrict his liability to part of the Principal debtor's liability by contract. Surety's liability is distinct and separate.
Section 148 of Indian Contract Act 1872 defines ‘ Bailment ’ as the delivery of goods by one
person to another for some purpose, upon a contract that they shall, when the purpose is
accomplished, be returned or otherwise disposed of according to the direction of the person
delivering them. The person who owns and delivers the goods is called the ‘ bailor ’. The person to whom the
goods are delivered is called the ‘ bailee ’.
Example: A man drops off his clothes for dry cleaning. He is the bailor and the purpose of
bailment is to have the particular set of clothes cleaned. The dry cleaner is the bailee – he is
the temporary custodian of the clothes and is responsible for keeping them safe and to return
them to the bailor once they have been cleaned.
Explanation to Section 148 states that if a person already in possession of the goods of
another person contracts to holds the goods as a bailee, he becomes the bailee even though the goods may not have been delivered to him by way of bailment in the first place. For
example, a seller of goods becomes a bailee if the goods continue to be in his possession after
sale is complete. Here the original possession of goods was with the seller as the owner of
the said goods and after the sale, his possession is converted into a contract of bailment.
Example: A has a motorcycle that he sells to B who leaves the motorcycle in the possession
of A while he is out of town. Here, A becomes the bailee even though he was the owner
originally.
Halsbury defines Bailment as ‘delivery of personal chattels in trust on a contract, express or implied, that the trust shall be duly executed and chattels redelivered in either their original or
altered form, as soon as the time of use, or condition on which they had been bailed has
elapsed or been performed respectively’.
Justice Blackstone defines Bailment as ‘a delivery of goods in trust, upon contract, either
expressed or implied, that the trust shall be faithfully executed on the part of the bailee’.
Bailment can also be described as ‘the delivery of goods to another person for a particular
use’.
NATURE OF BAILMENT Bailment is a type of special contract and thus, all basic requirements of contract like consent
of parties, competency, etc are applicable to any contract of Bailment. A bailment is usually
created by an agreement between the bailor and bailee. Section 148 specifically talks of
bailment via a contract. But a valid bailment can also arise in absence of express
contracts or from invalid or voidable contracts.
In bailment, neither the property nor the ownership of the goods involved is transferred at any
point. Only the temporary possession of the bailed goods is transferred and the ownership of such goods remains with the bailor. The bailor can demand to have the property returned to
him at any time.
WHAT MAY BE BAILED
Only ‘goods’ can be bailed and thus, only movable goods can be the subject matter of
bailment. Current money or legal tender cannot be bailed. Deposition of money in a bank is
not bailment as money is not ‘goods’ and the same money is not returned to the client.
But the coins and notes that are no longer legal tender and are more or less just objects of
curiosity, then they can be bailed.
Essentail Characteristics of bailment:
Section 148 of the Indian Contract Act, 1872 makes it very clear that there are three essential
features of Bailment, namely:
Delivery of Possession
Delivery upon Contract
Delivery for a purpose and Return of Goods
Delivery of Possession: The delivery of possession of goods is essential for bailment.
There must be transfer of possession of the bailed goods from bailor to bailee and the goods
must be handed over to the bailee for whatever is the purpose of bailment. Here, possession
means control over goods and an intention to exclude others from exercising similar control
over the same goods. Thus, the bailee must have actual physical control of the property with
the intent to possess it for a valid bailment.
As per Section 149 , the delivery can also be made to the bailee by doing anything which has the effect of putting the bailed goods in the possession of the intended bailee or any person
authorized by him for this purpose.
Thus, the delivery of possession can be actual or constructive. The delivery may either put
the bailee in the actual physical possession of the goods or put the bailee in a position of
power over such goods that may be possessed later. The essential of a bailment is the delivery
of goods for a temporary purpose.
Mere custody of goods is not the same as delivery of possession. A guest who uses the goods
of the host during a party is not a bailee. Similarly, it was held in Reaves vs. Capper [1838 5 Bing NC 136] that a servant in custody of certain goods by the nature of his job is not a
bailee. Similarly, a servant holding his master’s umbrella is not a bailee but is a custodian.
Similarly, hiring and storing goods in a bank locker by itself is not bailment thought there is
delivery of goods to the bank premises. The goods are in no way entrusted to the bank. A
bank cannot be presumed to know what goods are stored in any given locker at all the times.
If a bank is given actual and exclusive possession of the property inside a locker by the
person who hired the locker, only then can bailment under Section 148 can be presumed. In Atul Mehra vs. Bank of Maharashtra [AIR 2003 P&H 11], it was held that mere hiring of a
bank’s locker and storing things in it would not constitute a bailment. But the position
changes completely if the locker in the safe deposit vault of the bank can be operated even
without the key of the customer.
Example: A hired a locker in a bank and kept some of his valuables in it. He was given one
key to open the locker. But the bank manager of the particular branch had fraudulently filed
the levers of the locks of the lockers. Thus, the lockers could be opened even without the key
of the customers. A’s valuables went missing. A’s control over the valuables in that locker had gone because the locker could be operated even without A’s key. The bank was liable for
the loss of A’s belongings from the locker as it became a bailee. This example is similar to
the case of National Bank of Lahore vs. Sohan Lal [AIR 1962 Punj. 534]
Thus, it is clear that the nature of possession is very important to determine whether a
delivery is for bailment or not. If the owner continues to have control over the goods, there
can be no bailment.
To create a bailment, the bailee must intend to possess and in some way physically possess or
control the bailed goods or property. In a situation where a person keeps the goods in
