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Contract of Indemnity and Guarantee PDF
Contract of Indemnity and Guarantee PDF
Paper 2
Business Laws, Ethics & Communication
The Contract Act
1872
Unit 1 Part 7 Indemnity and Guarantee
CA. Manish Dafria
Learning Objectives
Contract of Indemnity
• Meaning
• Right of Promisee
Contract of Guarantee
• Meaning
• Rights and liabilities of the parties
• Guarantee When become invalid
Difference Between Indemnity and Guarantee
Contract of Indemnity
Meaning (Sec. 124)
A contract by which one party promises to save the other
from loss caused to him
by the conduct of the or the conduct of any other
promisor himself, person,
is called a "contract of indemnity".
A contracts to indemnify B against the consequences of any proceedings
which C may take against B in respect of a certain sum of 20000 rupees. This
is a contract of indemnity.
Right Of Promisee When Sued (Sec.
125)
• The promisee in a All damages which he may
contract of indemnity, be compelled to pay
acting within the scope
of his authority, is All costs which he may be
compelled to pay in any
entitled to recover from suit
the promisor‐
All sums which he may
have paid under the terms
of any suit
Contract of Guarantee
Meaning (Sec. 126)
A "contract of guarantee" is a contract …
to perform the promise, or discharge the liability, of a
third person …
… in case of his default.
Contract of Guarantee
Terminology
The person in
The person who
respect of whose The person to
gives the
default the whom the
guarantee is
guarantee is given guarantee is given
called the
is called the is called the
"surety“ or
"principal "creditor".
“guarantor”.
debtor“.
Consideration for Guarantee
• Anything done, or any promise made, for
the benefit of the principal debtor, is a
sufficient consideration to the surety for
giving the guarantee. (Sec. 127)
and the surety is entitled
to recover from the principal whatever sum he has rightfully
debtor paid under the guarantee.
Surety’s Liability [Sec 128]
• The liability of the surety is co‐extensive with
that of the principal debtor, unless it is
otherwise provided by the contract.
Discharge of Surety
Discharge of surety
Any variance, made without the
surety’s consent,
Discharge of in the terms of the contract between
the principal debtor and the creditor,
surety by
variance in
terms ofB’s conduct as manager in C’s bank. Afterwards,
A becomes surety to C for
B and C contract, without A’s consent, that Bs salary shall be raised, and
discharges the surety as to
contract (S. for one‐fourth
that he shall become liable transactions subsequent to the
of the losses on overdrafts. B
allows a customer to over‐draw, and the bank losesvariance.
a sum of money.
133)
A is discharged from his suretyship by the variance made without his
consent, and is not liable to make good this loss.
Discharge of
Surety The surety is discharged
Discharge of
surety when
creditor by which the creditor makes a
compromise with, or promises to give
compounds time, or not to sue, the principal debtor,
with, gives time
to, or agrees
not to sue,
discharges the surety, unless the surety
principal debtor assents to such contract.
(Sec 135)
Rights of Surety
Rights Of Surety On Payment Or
Performance (Sec. 140)
every security which the creditor has against
the principal debtor at the time when the
contract of guarantee entered into,
whether the surety knows of the existence of
such security or not.
Surety’s Right to Benefit of Creditor’s
Securities (Sec. 141)
by means of misrepresentation
made by the creditor or with his knowledge and assent,
concerning a material part of the transaction,
is invalid.
Guarantee Obtained By Concealment,
Invalid (Sec 143)
which the
creditor has
obtained by
means of
Any guarantee is invalid.
keeping
silence as to a
material
circumstance,
Guarantee on Contract that Creditor
Shall Not Act on it Until Co‐surety
Joins (Sec 144)
that the
creditor shall
Where a the guarantee
not act upon
person gives a is not valid if
it until
guarantee that other
another
upon a person does
person has
contract not join.
joined in it as
co‐surety,
Commencement of Guarantor’s
(Surety’s) Liability
• Liability of surety arises as soon as a default is
made by the principal debtor.
Number of Parties
In a Contract of
In a Contract of
Indemnity there are
Guarantee there are
only two parties namely
three parties‐ creditor,
the indemnifier
principal debtor and
[promisor] and the
surety.
indemnified [promisee]
Contract of Indemnity and Contract of
Guarantee ‐ Distinction
Extent of Liability
In the Contract of
In the Contract of
Guarantee, the liability
Indemnity, the liability
of the surety is
of the indemnifier is
secondary as the
primary and
primary liability is that
independent
of the principal debtor
Contract of Indemnity and Contract of
Guarantee ‐ Distinction
Time of liability
In case of Guarantee,
The liability of the liability is already in
indemnifier arises only existence but
on the happening of a specifically crystalises
contingency when principal debtor
fails
Contract of Indemnity and Contract of
Guarantee ‐ Distinction
Time to Act
In case of Guarantee,
The indemnifier
surety must act by
need not necessarily
extending guarantee
act at the request of
at the request of
indemnified
debtor
Contract of Indemnity and Contract of
Guarantee ‐ Distinction
Right to Sue Third Party
In case of Contract of
In case of contract of
Guarantee surety can
Indemnity, indemnifier
proceed against principal
cannot sue a third party for
debtor in his own right
loss in his own name as
because he gets all the
there is no privity of
rights of a creditor after
contract
discharging the debts
Summary
A contract by which one party promises to save the other from loss caused
to him by the conduct of the promisor himself, or the conduct of any other
person, is called a "contract of indemnity".
A contract to perform the promise, or discharge the liability, of a third
person in case of his default is called a "contract of guarantee".
The person who gives the guarantee is called the "surety“ or “guarantor”.
The person in respect of whose default the guarantee is given is called the
"principal debtor“. The person to whom the guarantee is given is called the
"creditor".
Summary
Anything done, or any promise made, for the benefit of the principal debtor,
is a sufficient consideration to the surety for giving the guarantee.
There are 3 different modes of discharge of surety given by Sec. 133.134 and
135.
After discharge of his liability, a surty has same rights as the creditor had
against debtor.
A guarantee obtained by misrepresentation or concealment is invalid.
Thank You