Commentary

44.1 General implications of ‘joint and several’ liability

BOILERPLATE AND COMMERCIAL CLAUSES vol 4(3)
| Commentary

44.1 General implications of ‘joint and several’ liability

| Commentary

44: JOINT AND SEVERAL LIABILITY

(For joint and several liability clauses see Form 44.1 [1670] onwards.)

44.1 General implications of ‘joint and several’ liability

Whether an undertaking given by two or more persons is ‘several’ or ‘joint’, or both ‘joint and several’, is a matter of construction and depends on the intention of the parties as evidenced by the provisions of their agreement1.

In the absence of express wording, the presumption, where two or more persons join in making a promise, is generally that liability for performance is joint2 and therefore all the promisors must be joined as defendants to proceedings to enforce

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