History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.627

v4.c63.627

Sureties of all kinds are personally liable to make good the loss arising from the non-appearance of the debtor, or from his dishonesty or non-payment (Yāj. II. 53, Viṣṇu VI. 41, Bṛ. in S. B. E. 33 p. 327 v. 41); but the sons of the surety for appearance or honesty were not liable, if the surety died⁷³⁰. Yet if the surety for appearance or honesty stood surety only after taking some security from the debtor for so doing, then even the son would be liable to reimburse from such security the person losing. The liability of sons and grandsons for the suretyship debt of the father or grandfather will be discussed a little later on. If there are several sureties, then each will have to pay a proportionate part of the debt; but if each of the sureties has undertaken the whole liability of the debtor (i. e. if the liability of all is joint and several) then the creditor may at his will recover the whole debt from any one of the several sureties (Yāj. II. 55, Nār. IV. 120). Kāt. 538 states⁷³¹ a special rule that whichever out of several sureties that have incurred joint and several liability is found present at the place (of the agreement) should be made to pay the debt; if such a surety has gone abroad his son may be made to pay the whole, but if the surety be dead the son should be made to pay only the share of his father (there being several sureties). If a surety being pressed or harassed by a creditor pays openly (before all people) the debt (wholly or in part)⁷³² then the debtor will be made to pay after three fortnights double of what the surety has to pay (Yāj. II. 56, Nār. IV. 121, Viṣṇu Dh. S. VI. 44, Kāt. 539). But if the surety pays without being pressed he would get only what he paid and if the debtor reimburses the surety without loss of time then he has not to pay double. These rules apply to money lent; but in the case of grain, clothes and liquids the debtor must pay to the surety three, four or eight times respectively (Yāj. II. 57). Who could not be accepted as sureties has already been stated (on pp. 291-292).