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Tuesday, Jan 25th 2022

The ACP Legal Association

  • OHADAC and ACP Legal

    The partisans of this project, called OHADAC (Organisation for the Harmonisation of Business Law in the Caribbean), decided to meet within the framework of the association ACP Legal, to help interested Caribbean States to implement the project.

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  • OHADAC in brief

    This brochure has been published by the ACP Legal Association.

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OHADAC PRINCIPLES ON INTERNATIONAL COMMERCIAL CONTRACTS

Article 4.4.1

Plurality of obligors

1. When several obligors are bound to the same obligee by the same obligation, this obligation is joint and several if each obligor is bound for the whole obligation, so that the obligee may claim performance from any of the obligors and that the fulfilment by one discharges the others.

2. When each obligor is bound only for its share, the obligations are equal unless the circumstances indicate otherwise.

The same contract can imply obligations for a plurality of parties in the same position and, to be precise, the same concurrent position (contract is jointly concluded) instead of a consecutive position (such as that derived, for example, from assignment of rights or succession). This plurality of parties may be both of obligors (passive) and of obligees (active). A plurality of obligors and obligees is also possible at the same time. These are frequent hypotheses in international trade law (especially passive severability); that is why a specific regulation which takes into account particularities of each case seems convenient.

In case of plurality of obligors, it is possible that each one is obliged to perform only a part of the obligation, so that the obligee has only the right to claim against each obligor for its part. In such a case, the plural obligation is called “joint”, “separate” (Article 11.1.11 UP; Article 10:101 PECL) or “mancomunada simple” (in civil codes such as the Guatemalan, Honduran, Mexican, Panamanian and Puerto Rican). If obligees are jointly obliged, they have only the right to claim their parts of the credit and the obligor must perform only its separate part to each one. In both cases, division or fragmentation of the obligation or the rights implies the independent nature of each obligation, so that acts of modification or extinction of obligation are only referred to each obligor or obligee independently and have effect only in relation with each one. Each obligation and each right are different and independent to all intents and purposes. This kind of obligation calls for a non-mandatory regulation [Article 4.4.1 (2)], according to which each joint co-obligor is obliged for an equal share. This rule is found in several civil codes (Article 246.1 of the Cuban Civil Code; Article 1.348 of the Guatemalan Civil Code; Article 6:6.1º of the Dutch and Suriname Civil Code; Article 1.986 of the Mexican Civil Code; Article 1.929 of the Nicaraguan Civil Code; Article 1.024 of the Panamanian Civil Code; Article 1.091 of the Puerto Rican Civil Code), as well as in Article 10:103 of the PECL.

In commercial contracts, obligations assumed by a plurality of obligors are usually joint and several. In this case, co-obligors are obliged to perform a single obligation, which may be wholly claimed by the obligee from any obligor [Article 4.4.1 (1)]. This is the sense of the severability between obligors widespread in civil codes (Article 637 of the Costa Rican Civil Code; Article 1.568 of the Colombian Civil Code; Article 248 of the Cuban Civil Code; Article 1.200 of the Dominican and French Civil Code; Article 1.352 of the Guatemalan Civil Code; Article 987 of the Haitian Civil Code; Article 1.400 of the Honduran Civil Code; Article 6:6.1º of the Dutch and Suriname Civil Code; Article 1.987 of the Mexican Civil Code; Article 1.924 of the Nicaraguan Civil Code; Article 1.024 of the Panamanian Civil Code; Article 1.090 of the Puerto Rican Civil Code; Article 1.034 of the Saint-Lucian Civil Code; Article 1.221 of the of the Venezuelan Civil Code; Article 178 Proposals for the Reform of the French law on obligations of 2013), as well as in Article 11.1.1 UP; Article 10:101 (3) PECL; III-4:102 (3) DCFR. In common law systems and particularly in English law these obligations are called “joint and several”, while separate obligations are named simply as “joint” obligations.

If the co-obligor sued by the obligee performs more than its share, it has an action for recovery against the other obligors. Hence regulation of external relationships between co-obligors and obligee is necessary (Articles 4.4.2 to 4.4.7), as well as regulation of internal relationships between co-obligors themselves where one of them has performed wholly or in part (Articles 4.4.8 and 4.4.9).

Commentary

Article 4.4.2

Presumption of joint and several obligations

An obligation on the part of two or more obligors is presumed to be joint and several, unless declared to be otherwise.

The first relevant question consists in determining the kind of plural obligation resulting from the contract where parties have not expressly agreed thereon. In this respect, presumption of severability is the most extended solution in relation with commercial contracts both in domestic laws and in international texts. Favor debitoris supports the contrary presumption in most civil codes, but in commercial contracts the presumption of severability prevails by virtue of the favor creditoris principle. Indeed, most civil codes and international texts require an express agreement, rule of law or trade usage in order to consider an obligation as joint and several [Article 1568.3 of the Colombian Civil Code; Article 638 of the Costa Rican Civil Code; Article 248.4 of the Cuban Civil Code; Article 1.202 of the Dominican and French Civil Code; Article 1.353 of the Guatemalan Civil Code; Article 989 of the Haitian Civil Code; Article 6:6.1º of the Dutch and Suriname Civil Code; Article 1.400 of the Honduran Civil Code; Article 1.988 of the Mexican Civil Code; Article 1.924 of the Nicaraguan Civil Code; Article 1.025 of the Panamanian Civil Code; Article 1.090 of the Puerto Rican Civil Code; Article 1.299 of the former Suriname Civil Code; Article 176 of the Proposals for the Reform of the French law of obligations of 2013]. Likewise, under English law, joint and several obligations must be expressly agreed [Levi v Sale (1877), 37LT 709; White v Tyndall (1888), 13 App. Cas. 263; The Argo Hellas (1984), 1 Lloyd's Rep.296). However, this rule has been extended to commercial contracts in most legal systems, either by case law (by applying a trade practice, as in France and Puerto Rico) or by virtue of a specific rule (Article 825 of the Colombian Commercial Code; Article 432 of the Costa Rican Commercial Code; Article 674 of the Guatemalan Commercial Code; Article 711 of the Honduran Commercial Code; Article 102 of the Nicaraguan Commercial Code; Article 221 of the Panamanian Commercial Code; Article 1.036 of the Saint-Lucian Civil Code; Article 11.1.2 UP; Article 10:102 PECL; Article III-4:103 (2) DCFR). That is why a set of specific rules on international commercial contracts directly presumes severability in cases of plurality of obligors.

Commentary

Article 4.4.3

Variable joint and several obligations

An obligation may be joint and several between some of the co-obligors, and not between all of them.

A joint and several obligation does not lose its character if obligors are obliged in different manners. Indeed, each obligor could be subject to different delays, conditions or places of payment. In this Article, “variable severability” is envisaged in the sense of many legal texts [Article 1.569 of the Colombian Civil Code; Article 639 of the Costa Rican Civil Code; Article 1.201 of the Dominican and French Civil Code; Article 1.353 of the Guatemalan Civil Code; Article 988 Haitian Civil Code; Article 1.401 Honduran Civil Code; Article 1.925 Nicaraguan Civil Code; Article 1.027 of the Panamanian Civil Code; Article 1.093 of the Puerto Rican Civil Code; Article 1.035 of the Saint-Lucian Civil Code; Article 1.222 of the Venezuelan Civil Code; Article 10:102 (3) of the PECL].

Commentary

Article 4.4.4

Rights of the obligee

The obligee of a joint and several obligation may apply for total or partial performance by any one of the obligors at its choice.

In joint and several obligations any obligor may perform and the obligee cannot refuse it or ask another obligor for performance. In contrast, the obligee has the right to choose the obligor or co-obligors from which it may claim performance, in whole or in part. Certainly, such a ius electionis is limited in English law to the possibility of claiming against one particular obligor (chosen by the obligee) or all obligors together, so that claims against several obligors excluding one or other obligors are not allowed [Cabell v Vaughan (1669), 1 Wms. Saund. 291; Richard v Heather (1817), KB. & Ald. 29]. However, the most usual solutions do not provide that limit (Article 1.571 of the Colombian Civil Code; Article 640 of the Costa Rican Civil Code; Article 249 of the Cuban Civil Code; Article 1.203 of the Dominican and French Civil Code; Article 1.357.1 of the Guatemalan Civil Code; Article 990 of the Haitian Civil Code; Article 1.403 of the Honduran Civil Code; Article 6:7.1º of the Dutch and Suriname Civil Code; Article 1.989 of the Mexican Civil Code; Article 1.927 of the Nicaraguan Civil Code; Article 1.031 of the Panamanian Civil Code; Article 1.097 of the Puerto Rican Civil Code; Article 1.038 of the Saint-Lucian Civil Code; Article 178 of the Proposals for the reform of the French law on obligations; Article 11.1.3 UP, and implicitly in the definition of joint and several obligations in PECL and DCFR). In contrast, a sued co-obligor cannot refer the obligee to another obligor or perform only its part.

Commentary

Article 4.4.5

Effects of legal proceedings

1. Performance of the obligation by one of the co-obligors does not extinguish a joint and several obligation, only the part that the co-obligor should have fulfilled.

2. Legal proceedings taken against one of the co-obligors suspend limitation periods for the others

Many legal systems in the OHADAC sphere provide specific rules on the effects of judicial claims. Thus, it is firstly stated that lawsuits of the obligee against one of the obligors does not prevent judicial or non-judicial claims against other co-obligors insofar as the whole obligation is not performed [Article 1.204 of the Dominican and French Civil Code; Article 1.357 of the Guatemalan Civil Code; Article 991 of the Haitian Civil Code; Article 1.404 of the Honduran Civil Code; Article 1.928 of the Nicaraguan Civil Code; Article 1.031 of the Panamanian Civil Code; Article 1.997 of the Puerto Rican Civil Code; Article 1.039 of the Saint-Lucian Civil Code; Article 1.226 Venezuelan Civil Code; Blyth v Fladgate (1891), 1 Ch. 337; Article 178 Proposals for the reform of the French law on obligations of 2013].

Secondly, where the limitation period is suspended because the lawsuit against a co-obligor, the Venezuelan solution, according to which causes of suspension of the limitation period against one co-obligor cannot be invoked against other co-obligors, is rather rare (Article 1.228 of the Venezuelan Civil Code). The contrary approach, according to which lawsuit suspends the limitation period also against all other obligors, prevails (Article 2.540 of the Colombian Civil Code; Article 1.206 of the Dominican Civil Code; Articles 1.206 and 2.245 of the French Civil Code; Article 1.361 and 1.362 of the Guatemalan Civil Code; Article 993 of the Haitian Civil Code; Article 2.302 of the Honduran Civil Code; Article 2.001 of the Mexican Civil Code; Article 1.028 of the Panamanian Civil Code; Article 1.094 of the Puerto Rican Civil Code; Article 2.092 of the Saint-Lucian Civil Code; Article 11.1.7 UP).

Commentary

Article 4.4.6

Defences

A joint and several obligor sued by the obligee may plead all the defences which are common to all the co-obligors as well as such as are personal to himself, but it cannot plead such defences which are purely personal to one or several of the other co-obligors.

This Article deals with a general rule that distinguishes defences which a co-obligor can put against a claim for payment or performance. The distinction between common and personal defences is usual in this respect (Article 1.577 of the Colombian Civil Code; Article 1.208 of the Dominican and French Civil Code; Article 1.360 of the Guatemalan Civil Code; Article 6:11 of the Dutch and Suriname Civil Code; Article 1.410 of the Honduran Civil Code; Article 1.995 of the Mexican Civil Code; Article 1.035 of the Panamanian Civil Code; Article 1.101 of the Puerto Rican Civil Code; Article 1.043 of the Saint-Lucian Civil Code; Article 1.224 of the Venezuelan Civil Code; Article 11.1.4 UP; Article 10:111 PECL; Article II-4:112 DCFR; Article 179 Proposals for Reform of the French law on obligations of 2013). However, the scope of defences varies from text to another. The unanimous solution chosen by the sued joint and several obligor is to plead common defences and its own personal defences against the obligee. This rule is also found in English case law: the co-obligor may plead common defences such as payment [Porter v Harris (1663), 1 Lev. 63], forgery [Gardener v Walsh (1885), 5 E&B. 84], or fraud of the creditor [Pirie v Richardson (1927), 1 KB], as well as its own personal defences, such as minority or insolvency [Burgess v Merrill (1812), 4 Taunt. 468; Gillow v Lillie (1835), 1 Bing. No C. 695; Lovell & Christmas v Beauchamp (1894), AC 607]. As far as personal defences of other co-obligors are concerned, some codes recognise it but only for the share of the obligation corresponding the sued obligor (Article 1.410 of the Honduran Civil Code; Article 1.931 of the Nicaraguan Civil Code; Article 1.035 of the Panamanian Civil Code; Article 1.101 of the Puerto Rican Civil Code). Thus, The OHADAC Principles opt for the solution chosen by the majority, which does not allow the obligor to plead personal defences of the other co-obligors.

Common defences are those relating to the obligation, including those derived from the legal act and those relating to development or vicissitudes of the obligation (e.g. legal prohibition, irregular form, lack or illegality of cause or object); that is why they can be pleaded by any co-obligor. Moreover, invoking this first kind of defences by co-obligor is considered rather a duty than an option, insofar as if the obligor does not invoke the defence when the obligee claims, it will not recover that part performed in excess of its share by virtue of some recovery remedy (Article 4.4.9).

Personal defences are those resulting from the particular manner in which the obligor concerned assumes its obligations, such as incapacity, incapacitation and defects of consent. That is why they can only be pleaded to the obligee by obligors directly involved. Article 4.4.9 shall be applied if these personal defences cannot be invoked against co-obligors in the recovery action.

The following Article determines the scope of means of performance or extinction of obligations in relation with joint and several debts and the other obligors.

Commentary

Article 4.4.7

Extinction of the obligation

1. Performance and set-off declared according to section 2 of chapter 6 extinguish the obligation to the amount paid or compensated.

2. The remission of one co-obligor's obligation extinguishes the obligation, unless the obligee expressly indicates that it is only discharging this co-obligor. In this case, it reduces the part and portion belonging to the co-obligor in the remainder of the obligation.

3. The obligee that renounces the joint and several liability with respect to one of the obligors does not imply the loss of the joint and several liability towards the others, but extinguishes the obligation for the obligor's part and portion that is being renounced.

4. The confusion of rights which arises when the qualities of obligor and obligee are united in the same person extinguishes obligation only for the part and portion of the co-obligor in whom the qualities of obligor and obligee are united.

Extinction of joint and several obligations occurs when total payment is made (or similar forms of performance, such as delivery or cession of goods as payment, tender of payment and deposit) by any obligor. If performance is partial, extinction will also be obviously partial and proportional to the performance. This is a common solution expressly set out in some texts (Article 251.2 of the Cuban Civil Code; Articles 1.358 and 1366 of the Guatemalan Civil Code; Article 6.7.2º of the Dutch and Suriname Civil Code; 1.934 of the Nicaraguan Civil Code; Article 1.032 of the Panamanian Civil Code; Article 1.098 of the Puerto Rican Civil Code; indirectly, Article 1.577.2 of the Colombian Civil Code; Article 11.1.5 UP). The set-off, declared according to Section 2 of Chapter 6 of these Principles, has the same effect as payment, as far as it has been declared and invoked by the obligor who is at the same time the obligee of the joint obligee and will be invoked by it. It extinguishes the obligation of the amount that concerns it, i.e. the full amount or up to the amount set off.

If the obligee releases the debt of all the joint obligors for an amount covering the entire debt, it is clear that this remission leads to the total extinction of the obligation. Likewise, a partial remission of the debt in respect of all co-obligors reduces the common obligation for that portion and releases all obligors from their performance. When the remission is for only one co-obligor, this is more problematic and there are different legal solutions thereon. Some legal systems establish that such a remission does not affect the obligee's rights against the other co-obligors, that is these systems do not consider the “presumption of remission” in relation with other co-obligors [Article 1.366 of the Guatemalan Civil Code; Article 998 of the Haitian Civil Code; Article 1.408 of the Honduran Civil Code; Article 11.1.6 UP; Article 10:108 (2) PECL; Article 180 Proposals for Reform of the French law on obligations of 2013]. If the obligee does not declare otherwise, the remission is presumed to have discharged only the obligor involved and the other co-obligors for the released portion, as mentioned below. However, the solution favourable to “presumption of remission” which exists in other legal systems seems preferable (Article 1.573 of the Colombian Civil Code; Article 642 Costa Rican Civil Code; Article 1.285.1 Dominican and French Civil Code; Article 1940 Nicaraguan Civil Code), given that it is more adequate to contractual severability. Thus, if the obligee does not want that remission to benefit all obligors, but only one or some of them, it must declare it expressly. This is also the approach of English courts: remission of the debt is presumed to benefit all obligors, but if the remission affects only one obligor and the obligee reserves its rights against the others it is considered that the obligee has established a “covenant not to sue” that only involves the obligor concerned [Hutton v Wyre (1885), 6 Taunt. 289; Kearsley v Cole (1846), 16 M & W 128, 136]. In any event, as it is usually considered, remission in respect of a obligor implies the extinction of the obligation only for the remitted part (Article 1.575 of the Colombian Civil Code; Article 646 of the Costa Rican Civil Code; Article 1.366 of the Guatemalan Civil Code; Article 997 of the Haitian Civil Code; Article 1.408 of the Honduran Civil Code; Article 1.992 of the Mexican Civil Code; Article 1.932 of the Nicaraguan Civil Code; Article 1.030 of the Panamanian Civil Code; Article 1.032 of the Saint-Lucian Civil Code; Article 11.1.6 UP).

Moreover, the civil codes state expressly and unanimously that the waiver of severability in respect of one obligor does not imply the loss of severability in respect of the other obligors. This is an express and almost unanimous solution in civil codes (Article 1.573 of the Colombian Civil Code; Article 646 of the Costa Rican Civil Code; Article 1.210 of the Dominican and French Civil Code; Article 1.367 of the Guatemalan Civil Code; Article 997 of the Haitian Civil Code; Article 1.406 of the Honduran Civil Code; Article 1.936 of the Nicaraguan Civil Code; Article 1.045 of the Saint-Lucian Civil Code; Article 1.233 of the Venezuelan Civil Code). However, in those cases some legal systems state that the whole obligation remains intact in respect of the other obligors (Article 1.233 Venezuelan Civil Code). Nevertheless, the solution that is most used has been chosen by these Principles. It provides for the extinction (decreasing) of the obligation in the share of the obligor whose severability is renounced (Article 1.573 of the Colombian Civil Code; Article 646 of the Costa Rican Civil Code; Article 1210 of the Dominican and French Civil Code; Article 997 of Haitian Civil Code; Article 1.406 of the Honduran Civil Code; Article 1.936 of the Nicaraguan Civil Code). The Guatemalan Civil Code could be incorporated into this group, insofar as it provides that liberation of a joint and several obligor does not alter obligations of the other obligors in relation with “the rest of the obligation” (Article 1.367 of the Guatemalan Civil Code).

Finally, where a co-obligor is at the same time co-obligor and obligee, the obligation extinguishes in the part corresponding to that co-obligor (Article 1.209 of the Dominican and French Civil Code; Article 1.348 of the Guatemalan Civil Code; Article 996 of the Haitian Civil Code; Article 1.951 of the Nicaraguan Civil Code; Article 1.232 of the Venezuelan Civil Code).

Commentary

Article 4.4.8

Relationship between joint and several obligors

1. Shares of joint and several obligors are equal, unless the circumstances indicate otherwise.

2. Unless otherwise agreed, if one of the co-obligors is found insolvent, the loss occasioned by its insolvency is apportioned among all the others.

The obligation between joint and several co-obligors is not, in principle, joint and several. Co-obligors may agree a joint and several regime of their internal relationships, but such a clause is not usual. In the absence of agreement, the most common provision is the separate character of the debt: each co-obligor is only responsible for its share against the obligor which has performed more than its share. Shares of co-obligors are presumed equal, as stated in many legal texts [Article 1.579 of the Colombian Civil Code; Article 649 of the Costa Rican Civil Code; Article 1.213 of the French and Dominican Civil Code; Article 1.000 of the Haitian Civil Code; Article 1.999 of the Mexican Civil Code; Article 1.949 of the Nicaraguan Civil Code; Sholefield Goodman & Sons Ltd v Zyngier (1986), AC 562; Article 11.1.9 UP; Article 10:105 (1) PECL; Article III-4:106 (1) DCFR; Article 181 of the Proposals for the Reform of the French law on obligations of 2013].

At any event, a mutual obligation to cover risks in case of insolvency is provided as a guarantee in order to remedy any unfair situations. This obligation of distribution among co-obligors (including the one who has paid the obligee) of the share of the obligor unable to reimburse its share of the debt, in proportion to the shares of each obligor in the whole obligation, is found in most codes (Article 1.583 of the Colombian Civil Code; Article 1.214 Dominican and French; Article 1.359 of the Guatemalan Civil Code; Article 1.001 of the Haitian Civil Code; Article 6:13 Dutch and Suriname Civil Code; Article 1.999 of the Mexican Civil Code; Article 1.945 of the Nicaraguan Civil Code; Article 1.032 of the Panamanian Civil Code; Article 1.098 of the Puerto Rican Civil Code; Article 1.049.2 of the Saint-Lucian Civil Code; Article 1.238 of the Venezuelan Civil Code; Article 10:106 PECL; Article 181 of the Proposals for the reform of the French law on obligations of 2013). The same solution is admitted in equity [Lowe v Dixo (1885), 16 QBD 455, 458), modifying the traditional rule of common law, according to which the debt was divided among all obligors regardless of their solvency.

Commentary

Article 4.4.9

Recovery of contribution and subrogation

1. A joint and several obligor who has paid more than its share, may recover the excess from the other co-obligors to the extent of each obligor's share.

2. A joint and several obligor who has performed more than its share may also subrogate in the rights of the obligee.

3. A joint and several obligor against whom a claim is made by the obligee may assert all the defences that are common to all the co-obligors and were not invoked by that co-obligor, as well as the defences that are personal to it, but it may not assert defences that are purely personal to one or more of the other co-obligors.

Once the share of each co-obligor has been determined, if one of them has paid more than its share to the common obligee, it may claim for the excess from the co-obligors by means of a recovery action usually expressly provided in domestic legal systems. All domestic national systems exclude the joint and several nature of the obligations between the co-obligor who has made the payment and the other co-obligors: the claim for recovery only affects the other co-obligors to the extent of their own share [Article 1.575 of the Colombian Civil Code; Article 651 of the Costa Rican Civil Code; Article 251.3 of the Cuban Civil Code; Article 1.214 of the Dominican and French Civil Code; Article 1358 of the Guatemalan Civil Code; Article 1.001 of the Haitian Civil Code; Article 6:10 of the Dutch and Suriname Civil Code (Article 6:12.1º of the Netherland Antilles and Aruba Civil Code); Article 1.999 of the Mexican Civil Code; Article 1.947 of the Nicaraguan Civil Code; Article 1.032 of the Panamanian Civil Code; Article 1.098 of the Puerto Rican Civil Code; Article 1.048 of the Saint-Lucian Civil Code; Article 1238 of the Venezuelan Civil Code; Davitt v Titcumb (1989), 3 All ER 417, 422; Article 11.1.10 UP; Article 10:106 PECL; Article III-4:107 (2) DCFR; Article 181 of the Proposals for the reform of the French law of obligations of 2013]. Apart from that, that claim against other co-obligors also includes expenses caused by payment to the obligee. This is a common rule, although it is only expressly envisaged in some legal texts [Article 651 of the Costa Rican Civil Code; Article 1.358 of the Guatemalan Civil Code; Article 1.032 of the Panamanian Civil Code; Article 1.098 of the Puerto Rican Civil Code; 10:106 (3) PECL; Article III-4:107 (3) DCFR]. Obviously, the right to recover is not absolute: when the obligation has been assumed in the interest of only one or several obligors, responsibility of other co-obligors is usually excluded (e.g. Article 2.000 of the Mexican Civil Code).

Besides the right to recover, a co-obligor which has performed more than its share has the possibility of subrogation to the rights of the obligee (Article 1.579 of the Colombian Civil Code; Article 1.251.3 of the French and Dominican Civil Code; Article 1.412 of the Honduran Civil Code; Article 1.999 of the Mexican Civil Code; Article 10:106 (2) PECL; Article III-4:107 (2) of the DCFR). This clarification is important, insofar as it is an additional remedy which, to some extent, helps to mitigate the strictness of the joint and several obligation of co-obligors. As mentioned above, when a co-obligor is sued by the obligee to perform the whole obligation or more than its share there is no possible opposition on the ground of the plurality of obligors. The concerned co-obligor may recover the exceeding part performed through the recovery action and the subrogation action as well. In this last case, unlike what occurs in the recovery action, the time of the obligation is the original one. At any event, the subrogation is not absolute, insofar as the co-obligor which has performed may act against each co-obligor only for its share of the debt (Article 1.049 of the Saint-Lucian Civil Code).

All co-obligors are obliged in respect of all other co-obligor to oppose all common defences against the obligee's claim. As mentioned above, invocation of common defences is necessary when the obligee sues one co-obligor for payment, so that if the co-obligor does not invoke such defences at that moment it will not recover in a recovery action the exceeding amount paid. Other co-obligors may oppose those common defences against the co-obligor which has performed more than its share (Article 1.208 of the Dominican and French Civil Code; Article 1.360 of the Guatemalan Civil Code; Article 11.1.12 UP). Only good faith consideration might attenuate that consequence: if the sued co-obligor notifies the obligee's claim to the other co-obligors and these co-obligors do not warn it about the existence of a common defence, they will not have the right to invoke that defence in their internal relationships, unless the co-obligor which has performed knew of the existence of such a defence.

Personal defences of one co-obligor claimed for recovery by the obligor that has performed may not be invoked against the obligee, but may be invoked in this way.

Commentary

Article 4.4.10

Joint and several obligees

If several obligees have a joint and several claim against a single obligor, they can individually claim the fulfilment of the whole obligation from the obligor, so that the fulfilment of the obligor to any obligee releases the obligor.

Where plurality of parties comes from the obligees, that is, when there are several obligees against a common obligor, the obligee usually has a separate or joint character: each obligee may only claim its share in the rights against the obligor. Joint and several claims or “active” severability is rather rare, because the obligor has no significant advantages and obligees may be severely disadvantaged. Each one of the joint and several obligees may claim from the obligor the whole performance of the obligation and the performance made releases the obligor. Thus it is envisaged in different legal texts [Article 1.568 of the Colombian Civil Code; Article 248.2 of the Cuban Civil Code; Article 1.197 of the Dominican and French Civil Code; Article 1.352 of the Guatemalan Civil Code; Article 985 of the Haitian Civil Code; Article 6:16 of the Dutch and Suriname Civil Code (Article 6:15 of the Netherland Antilles and Aruba Civil Code); Article 1.400 of the Honduran Civil Code; Article 1.987 of the Mexican Civil Code; Article 1.924 of the Nicaraguan Civil Code; Article 1.024 of the Panamanian Civil Code; Article 1.090 of the Puerto Rican Civil Code; Article 1.221 of the Venezuelan Civil Code; Article 11.2.1 UP; Article 10:201 (1) PECL; Article III-4:202 (1) DCFR; Article 248 of the Proposals for Reform of French law on obligations of 2013].

As mentioned earlier, severability of obligees is not common. Indeed, express agreements thereon are only frequent in some bank contracts, such as deposits and current accounts of indistinct holders. Indistinct holders of a current account or deposit (the co-obligees) expect that the bank (the obligor) obeys the requirements of any one of them, regardless of the ownership of the funds. They shall resolve this issue among themselves according to their internal relations. Thus, risks assumed by joint and several co-owners are self-evident: any of them may claim for refund of all existing funds or even to overdraw if this has been agreed with the bank, which is obliged to honour this request.

The definition of the joint and several claim indicates one of its fundamental effects: allowing co-obligees to claim the whole performance from the common obligor, who may not argue that the co-obligee does not represent all the obligees. Without denying the possibility that the obligor can extinguishes the obligation of its own initiative (Article 4.2.14), what is fundamentally important here is to determine the rights of co-obligees against the common obligor. Although the current bank accounts of indistinct co-holders are the most usual hypotheses in this respect, it must be stressed that there is no permanent obligation which the obligor wishes to extinguish or the obligee wishes to liquidate; that is why the ius electionis of the debt has not too much sense. However, joint and several credit agreements are also available in other kinds of contracts (joint-ventures, insurance, etc.); then, the proposed rule is not exclusively designed for bank current accounts of indistinct holders.

The second effect implied in the definition refers to the extinction of the obligation where the obligor performs the whole obligation in respect of one of the joint and several obligees. Given that this effect is described in the first rule on joint and several claims, a special rule such as included in Article 1.990 of the Mexican Civil Code or in Article 11.2.2 UP does not seem necessary.

Commentary

Article 4.4.11

Non presumption of joint and several rights or claims

There is no joint and several claims or obligees unless it is expressly agreed between the obligor and the obligees.

Insofar as joint and several credits are only conceivable on the basis of a close relationship of trust among co-obligees, it is advisable to require a contractual source of this relationship. The joint and several nature of claims (unlike that of obligations, as explained above) cannot be presumed. “Active” joint and several rights require, then, an express agreement between the obligees and the obligor, as expressly stated in most legal texts [Article 1.568 of the Colombian Civil Code; Article 248.4 of the Cuban Civil Code; Article 1.197 of the Dominican and French Civil Code; Article 1.353 of the Guatemalan Civil Code; Article 985 of the Haitian Civil Code; Article 6:16 of the Dutch and Suriname Civil Code (Article 6:15 Civil Code of the Netherland Antilles and Aruba); Article 1.400.3 of the Honduran Civil Code; Article 1.988 of the Mexican Civil Code; Article 1.924.2 of the Nicaraguan Civil Code; Article 1.024 of the Panamanian Civil Code; Article 1.090 of the Puerto Rican Civil Code; Article 1.223 of the Venezuelan Civil Code; Thompson v Hakewill (1865), 19 CNBS, 713, 726; Article III-4:203 (2) DCFR]. Although this rule is not expressly set out in the PECL, it can be inferred from commentaries thereon, which state that active joint and several claims may not be presumed. Even more radical approaches forbidding this kind of plurality of parties can be found: Article 636 of the Costa Rican Civil Code provides that joint and several claims are not possible and treat them through rules on agency.

Commentary

Article 4.4.12

Variable joint and several claims

A right or claim may be joint and several only between some of the obligees, and not between all of them.

Like variable “passive” severability, “active” severability also admits the possibility of agreeing to different conditions, periods or methods for claiming the performance by the obligor by each co-obligee. Indeed, this is usual in bank contracts of current account of indistinct holders. This is expressly stated in Article 1.353 of the Guatemalan Civil Code, Article 1.925 of the Nicaraguan Civil Code, Article 1.027 of the Panamanian Civil Code and Article 1.093 of the Puerto Rican Civil Code.

Commentary

Article 4.4.13

Rights of the obligor

The obligor has the option of performing or paying to any of the joint and several obligees.

The various civil codes usually recognise ius electionis in cases of “active” severability. The obligor may choose the co-obligee to which the obligation will be paid or performed (Article 1.570 of the Colombian Civil Code; Article 251.1 of the Cuban Civil Code; Article 1.198 of the Dominican and French Civil Code; Article 1.355 of the Guatemalan Civil Code; Article 985 of the Haitian Civil Code; Article 1.402 of the Honduran Civil Code, Article 1.926 of the Nicaraguan Civil Code; Article 1.029 of the Panamanian Civil Code; Article 1.095 of the Puerto Rican Civil Code; Article 1.241 of the Venezuelan Civil Code; Article 248 of the Proposals for Reform of the French law on obligations of 2013). The rule is limited by another rule according to which that choice is excluded when the obligor is sued by a particular co-obligee; in this case, the obligor must perform or pay to the claimant obligee. This rule is not provided in the UP, but is implied in Article 10:201 of the PECL.

Commentary

Article 4.4.14

Defences and extinction of the obligation

1. Where an obligor is sued by any of the joint and several obligees, it may assert all the defences that are common to the obligees as well as defences that are personal to its relationship with the obligee, but it may not assert defences that are purely personal to its relationship with one or more of the other co-obligees.

2. Performance as well as set-off declared according to section 2 of chapter 6 extinguishes the claim to the amount paid or compensated.

3. The remission of debt and the confusion of rights which arises when the qualities of obligor and obligee are united in the same person extinguish the claim only for the part and portion of the remitting obligee or the person in whom the qualities of obligor and obligee are united.

As in “passive” severability, it seems convenient to provide a rule establishing the defences that the obligor sued by any joint and several co-obligee may put forward (Article 11.2.3 UP). It is stated that the obligor may assert all common defences and all personal defences against the claimant co-obligee, but not its personal defences against other co-obligees. On the different defences, see the comments to Article 4.4.6.

Set-off, as in cases of joint and several obligors, once legally declared, is equivalent to performance (Article 1.570 of the Colombian Civil Code; Article 1.402 of the Honduran Civil Code; Article 1.926 of the Nicaraguan Civil Code; Article 1.991 of the Mexican Civil Code; Article 1.030 of the Panamanian Civil Code; Article 1.096 of the Puerto Rican Civil Code). As far as debts concerned by set-off and claims as well as effects of set-off is concerned, Section 2 of Chapter 6 of these Principles shall be applied. Consequently, if the performance or set-off is in full, the claim is extinguished. If they are partial, extinction will be to the extent of the performance or settlement. This is the most adopted solution, although some legal systems prefer to restrict the extinction to the share of the compensating obligee (Article 1.244 of the Venezuelan Civil Code). It is also the rule in the UP, given the reference made in Article 11.2.3 (2) to the corresponding rule on passive severability.

Although the remission of the credit follows the same treatment as payment and set-off in many civil codes (Article 1.570 of the Colombian Civil Code; Article 1.402 of the Honduran Civil Code; Article 1.926 of the Nicaraguan Civil Code; Article 1.990 of the Mexican Civil Code; Article 1.030 of the Panamanian Civil Code; Article 1.096 of the Puerto Rican Civil Code), an alternative approach seems more appropriate in this case. Remission only extinguishes the debt in the part of the obligee concerned, as it is provided in Article 986.2 of the Haitian Civil Code, Article 1.198 of the Dominican and French Civil Code, Article 1.366 of the Guatemalan Civil Code; in Article 1.244 of the Venezuelan Civil Code; and in Article 10:205 (1) PECL. UP follows the opposite approach: remission of the obligation by a joint and several obligee affects the rest of co-obligees according to Article 11.1.6; although this would be a good solution in cases of bank accounts or deposits of indistinct holders, it seems illogical because co-obligees are not affected by a remission that only affects the part of the obligee who carries out the remission.

Commentary

Article 4.4.15

Allocation between joint and several obligees

1. Joint and several obligees are entitled to equal shares, unless declared otherwise.

2. An obligee who has received more than its share must transfer the excess to the other obligees to the extent of their share in the right.

Where the proportion of each obligee in the debt is not expressly determined, the debt is considered as divided in equal shares. This rule is expressly provided in some legal texts [Article 1.030 of the Panamanian Civil Code; Article 1.096 of the Puerto Rican Civil Code; Article 10:204 (1) PECL].

The share of each co-obligee, once it has been determined (according to their internal relationships or the preceding rule), must protect the obligee that has not obtained its share in the right claimed against the obligor by another obligee. In other words, the obligee which has obtained the performance beyond its share of the credit must reimburse the other obligees in proportion to their shares [Article 250 of the Cuban Civil Code; Article 1.992 of the Mexican Civil Code; Article 11.2.4 (2) UP; Article 10:204 (2) PECL; Article III-4:206 (2) DCFR].

JOINT AND SEVERAL CLAUSES

Passive severability (of obligors)

“The obligation of the obligors is joint and several. All the obligors ((tenants, lessees, co-contracting parties, etc.) are equally obliged to perform the whole obligation, and the obligee (landlord, lessor, owner, contracting party, etc.) may claim against anyone of them until the obligation is totally extinguished.”

Active severability (of obligees)

“The claim is joint and several. Any obligee may claim the entire payment (performance) from the obligor, and the obligor may pay (perform) the entire debt (obligation) to any obligee.”

Commentary

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