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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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OHADAC principles on international commercial contracts.pdf
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