Abstract

Section 128 of the Indian Contract Act holds that the liability of a surety is co-extensive with that of the principal debtor. However, confusions arise when the principal debtor in a contract of guarantee has no liability. One such instance is when the principal debtor is a minor. Does it imply that surety is not liable? One view is that since any contract with a minor is void-ab-intio under the Indian Contract Act, the debt becomes void and the surety will not be liable. On the other hand, some courts are of the view that irrespective of the fact of minority of the principal debtor and applicability of section 128, the surety may be held liable in two situations – 1) case of misrepresentation where the surety has concealed the fact of minority of the principal debtor from the creditor 2) where the minor was supplied with necessities for which the creditor is bound to be reimbursed. This article attempts to analyze the concept through various contradictory approaches taken by courts, in the Indian and English context.

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