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Joint and Solidary Obligations
Transcript of Joint and Solidary Obligations
The concurrence of two or more creditors or two or more debtors or more debtors in one and same obligation does not imply that each own of the latter is bound to render, entire compliance with the prestation.
There is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. (1137a)
If from the law, or the nature or the wording of the obligations to which the preceding article refers, the contrary does not appear, the credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors, the credit or debts being considered distinct from one another, subject to the Rules of Court governing the multiplicity of suits. (1138a)
If the division is impossible the right of the creditors may be prejudiced only by their collective acts, and the debt can be enforced only by the latter should be insolvent, the others shall not be liable for his share.(1139)
The indivisibility of an obligation does not necessarily give rise to solidarity. Nor does solidarity of itself imply indivisibility.
Solidarity may exist although the creditors and the debtors may not be bound in the same manner and by the same periods and conditions.
Each one of the solidary creditors may do whatever may be useful to the others, but not anything which may be prejudicial to the latter.
A solidary creditor cannot assign his rights without the consent of the others.
Novation, compensation, confusion or remission of debt, made by any of the solidary creditors or with any of the solidary debtors shall extinguish the obligation, without prejudice to the provisions of article 1219
The creditor who may have executed any of these acts, as well as he who collects the debt, shall be liable to the others for the share in the obligation corresponding to them.
The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The demand made against one of them shall not be an obstacle to those which may subsequently be directed against the others, so long as the debt has not been fully collected.
Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditors may choose which offer to accept.
He who made the payment may claim from his co-debtors only the share which corresponds to each, with the interest for the payment already made. If the payment is made before the debt is du, no interest for the intervening period may be demanded.
When one of the solidary debtors cannot because of his insolvency, reimburse his share to the debtor paying the obligation, such share shall be borne by all his co-debtors, in proportion to the debt of each.
Kinds of Obligation
According to Parties
1. Individual Obligation
- one creditor/debtor
2. Collective Obligation
- 2 or more creditor/debtor
Kinds of Collective
1. Joint Obligation
- the obligation is performed/demanded proportionally by debtor/creditor
2. Solidary Obligation
- each of the debtors/creditor is bound to render/demand
Kinds of Solidary
1. Passive Solidary
- on the part of the debtors
2. Active Solidary
- on the part of the creditor
3. Mixed Solidary
- on the part of both the creditor and the debtor
According to Source
1. Conventional Solidary
- agreed upon parties
2. Legal Solidary -
imposed by law
3. Real Solidary -
imposed by nature of solidarity
Joint Invisible Obligation
Indivisibility Vs Solidarity
The one liable for damages is the guilty insolvent
Can exist although there is only one debtor or creditor
All debtors are liable for the obligation
There must be at least 2 creditor/debtor
Two kinds of Solidary
Obligation according to the legal tie:
When the parties are bound by the same stipulations.
When the parties are not subject to the same stipulations
The debtor may pay any one of the solidary creditors; but if any demand, judicial or extrajudicial, has been made by one of them, payment should be made to him.
Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal.
The remission made by the creditor of the share which affects one of the solidary debtors does not release the latter from his responsibility towards the co-debtors, in case the debt had been totally paid by anyone of them before the remission was effected.
The remission of the whole obligation obtained by one of the solidary debtors, does not entitle him to reimbursement from his co-debtors.
If the thing has been lost or if the prestation has become impossible without the fault of the solidary debtors, the obligation shall be extinguished.
If there was a fault on the part of any one of them, all shall be responsible to the creditor, for the price and the payment of damages and interest, without prejudice to their action against the guilty or negligent debtor.
If through a fortuitous event, the thing lost or the performance has become impossible after one of the solidary debtors has incurred in delay through the judicial or extra judicial demand upon him by the creditor, the provisions of the preceding paragraph shall apply.
A solidary debtor may, in actions filed by the creditor, avail himself of all defenses which are derived from the nature of the obligation and of those which are personal to him, or pertain to his own share. With respect to those which personally belong to the others, he may avail himself thereof only as regards that part of the debt for which the latter are responsible.
1. Lost is fault and before delay
A,C and D promise solidarity to deliver to D a particular truck valued at 15,000.00.
The obligation shall be extinguished if the truck is lost or destroyed through a fortuitous event without the fault of A, B and C AND before they have incurred in delay .
2. Lost is due to fault on the part of solidary of debtor
If in the preceding example, the truck was lost through yhe fault of C, A and B shall also be responsible to D for the price of the truck as well as damages although A and B were not fault at all. A solidary obligation is, in essence, a mutual agency. As far as the creditor is concerned the fault or delay of one solidary debtor, shall be the fault or delay of all the solidary debtor.
-A and B, however, can recover from C, the guilty or negligent debtor, the full amount of such price of the truck.
-If D recovers, the price and damages from C, the latter cannot claim reimbursement from A and B, because he alone was at fault.
3.Lost without fault but after delay
If the truck was lost through fortuitous event but after demand was made upon C,D can still recover damages from A OR B, or both of them without prejudice to the right of action of the latter against C following the same rule in no. 2.
-The default by C makes all of the solidary debtors responsible even for fortuitous event.
1. Defense derived from the nature of the obligation
A and B are solidary liable to C in the amount of 4,000.00. The entire debt of A and B was paid by D. I n an action by C against A, and latter raise the defense of payment by virtue of which the obligation was distinguished.
2. Defense personal to, or which pertain to share of, debtor sued.
If the act in by C is against B, and B was insane at the time the obligation was contacted, B can put up the defense of insanity with respect to the entire obligation .the defense is personal to B alone. It is complete defense.
-Other examples are: incapacity, mistake, violence, minority.
3.Defense personal to other solidary debtors.
In the two preceding Examples, the defense of insanity or not fulfillment of the suspensive condition