MODULE 5-C: JOINT AND SOLIDARY, DIVISIBLE AND

INDIVISIBLE OBLIGATIONS
A. Joint and Solidary Obligations, compared

In both joint and solidary obligations, there are more than one
debtors whom an obligation can be demanded and/or more than one
creditors who are entitled to the fulfillment of the obligation.

A joint obligation1 is one where 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.2 Each debtor is liable only for a proportionate part of the debt
and each creditor to his proportionate share to the credit.

For example, in a joint obligation where A, B, and C are co-debtors

of an amount of PhP 90,000.00, A, B, and C each owe an amount of PhP
30,000.00. Likewise, where X, Y, and Z are co-creditors in the same
obligation, each are entitled to an amount of PhP 30,000.00.

A solidary obligation3 is where each of the debtors obliges to pay

the entire obligation while each one of the creditors has the right to
demand from any of the debtors, the payment or fulfillment of the entire
obligation.4

Thus, in a solidary obligation where A, B, and C are co-debtors of

an amount of PhP 90,000.00 each, the creditor may demand the entire
PhP 90,000.00 from any of A, B, or C. Likewise, where X, Y, and Z are co-
creditors of the same debt, any of X, Y, or Z may demand the entire PhP
90,000.00 from any of the debtors.

In solidary obligations, the debtor from whom the entire obligation

is collected from has a right of reimbursement from his co-debtors of
their respective shares. Likewise, the creditor who collected the entire
obligation has the duty to distribute the shares pertaining to his co-
creditors.

A summary of the difference between joint and solidary obligations

are summarized in the succeeding table.

1
Other terms for joint obligations are: joint simply, mancommunada, or pro rata.
2
CIVIL CODE, art. 1208.
3
Other terms for solidary obligations are: joint solidarily, jointly and severally, or in
solidum.
4
CIVIL CODE, art. 1207.

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 Criterion Joint Solidary
Not presumed; Must
be expressly
stipulated by the
Presumption by law Presumed by law5 parties, or when the
law or the nature of
the obligation
requires solidarity6
Liability of each Proportionate part of Obliged to pay the
debtor the entire debt entire obligation
Each creditor has the
Each creditor, if there right to demand from
Right of the creditor
are several, is entitled any of the debtors,
to the fulfillment of
only to a proportionate the payment or
the obligation
part of the credit fulfillment of the
entire obligation

B. Joint Obligations

Presumption of a joint character

When two or more creditors or two or more debtors concur in one

and the same obligation, the presumption is that the obligation is joint.

The obligations shall only be solidary when:

1. Law requires solidarity;

2. Expressly stipulated that there is solidarity;
3. Nature of the obligation requires solidarity
(e.g., Civil liability arising from crime);
4. Charge or condition is imposed upon heirs or legatees and the
will expressly makes the charge or condition in solidum; or
5. Solidary responsibility is imputed by a final judgment upon
several defendants.7

Illustrative case

Chua bought and imported to the Philippines dicalcium phosphate.

When the cargo arrived at the Port of Manila, it was discovered that some
were in apparent bad condition. Thus, Chua filed with Smith Bell, and Co.,
Inc. (claiming agent of First Insurance Co.) a formal statement of claim for

5
Ibid at art. 1208.
6
Ibid at art. 1207.
7
Gutierrez v. Gutierrez, 56 PHIL. REP. 177 (1931).

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 the loss. No settlement of the claim having been made, Chua then filed an
action. Is Smith, Bell, and Co., Inc. solidarily liable upon a marine
insurance policy with its disclosed foreign principal?

No. Article 1207 of the Civil Code clearly provides that there is a
solidary liability only when the obligation expressly so states, or when
the law or the nature of the obligation requires solidarity. The well-
entrenched rule is that solidary obligation cannot lightly be inferred. It
must be positively and clearly expressed.8

Consequences of a joint obligation

1. Each debtor is liable only for a proportionate part of the entire debt.

2. Each creditor, if there are several, is entitled only to a proportionate

part of the credit.

3. The demand made by one creditor upon one debtor, produces effects
of default only as between them.

4. Interruption of prescription caused by the demand made by one

creditor upon one debtor, will NOT benefit the co-creditors or the co-
debtors.

5. Insolvency of a debtor will not increase the liability of his co-debtor.

6. Vices of each obligation emanating from a particular debtor or creditor

will not affect the others.

7. The delay on the part of only one of the joint debtors does not produce
effects with respect to the others, and if the delay is produced through
the acts of only one of the joint creditors, the others cannot take
advantage thereof.

C. Solidary Obligations

General rules in solidary obligations

1. Anyone of the solidary creditors may collect or demand payment of

the whole obligation; there is mutual agency among solidary debtors. 9

8
Smith, Bell & Co., Inc. v. Court of Appeals, G.R. No. 110668, February 6, 1997.
9
CIVIL CODE, arts. 1214-5.

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 2. Any of the solidary debtor may be required to pay the whole
obligation; there is mutual guaranty among solidary debtors. 10
3. Each one of solidary creditors may do whatever may be useful to the
others, but not anything prejudicial to them; 11 however, any novation,
compensation, confusion or remission of debt made by any solidary
creditors or with any of the solidary debtors shall extinguish the
obligation without prejudice to his liability for the shares of other
solidary creditors.12

Kinds of solidarity

1. Passive
- solidarity on the part of the debtors

2. Active
- Solidarity on the part of the creditors

3. Mixed
- solidarity on both parties

Juridical effects of passive solidarity

In passive solidarity, the essence is that each debtor can be made

to answer for the others, with the right on the part of the debtor-payor to
recover from the others their respective shares. In so far as the payment
is concerned, this kind of solidarity is similar to a mutual guaranty. Its
effects are as follows:

1. Each debtor can be required to pay the entire obligation; but

after the payment, he can recover from the co-debtors their
respective shares;

2. The debtor who is required to pay may set up by way of

compensation his own claim against the creditor, in this case,
the effect is the same as that of payment;

3. The total remission of a debt in favor of a debtor releases all the

debtors; but when this remission affects only the share of one
debtor, the other debtors are still liable for the balance of the
obligation;

10
Ibid at arts. 1216-7, and 1222.
11
CIVIL CODE, art. 1212.
12
Ibid at art. 1215 and 1219.

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 4. All the debtors are liable for the loss of the thing due, even if
such loss is caused by only one of them, or by fortuitous event
after one of the debtors has incurred in delay;
5. The interruption of prescription as to one debtor affects all the
others; but the renunciation by one debtor of the prescription
already had does not prejudice the others, because the
extinguishment of the obligation by prescription extinguishes
also the mutual representation among the solidary debtors; and

6. The interest due by reason of the delay by one of the debtors are
borne by all of them.

N.B. Example of words that connote solidary obligation: a) joint

and several; b) in solidum; c) individually and collectively; d) each will
pay the whole value; e) “I promise to pay” and there are two or more
signatures; and f) juntos o separadamente.

Juridical effects of active solidarity

The essence of active solidarity consists in the authority of each

creditor to claim and enforce the rights of all, with the resulting
obligation of paying everyone what belongs to him; there is no merger,
much less a renunciation of rights, but only mutual representation. It is
thus essentially a mutual agency. Its juridical effects may be
summarized as follows:

1. Since it is a reciprocal agency, the death of a solidary creditor

does not transmit the solidarity to each of his heirs but to all of
them taken together;

2. Each creditor represents the others in the act of receiving

payment, and in all other acts which tend to secure the credit
or make it more advantageous. Hence, if he receives only a
partial payment, he must divide it among the other creditors.
He can interrupt the period of prescription or render the debtor
in default, for the benefit of all other creditors;

3. One creditor, however, does not represent the others in such

acts as novation (even if the credit becomes more
advantageous), compensation and remission. In these cases,
even if the debtor is released, the other creditors can still
enforce their rights against the creditor who made the novation,
compensation or remission;

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 4. The creditor and its benefits are divided equally among the
creditors, unless there is an agreement among them to divide
differently. Hence, once the credit is collected, an accounting
and a distribution of the amount collected should follow;

5. The debtor may pay to any solidary creditor, but if a judicial

demand is made on him, he must pay only to the plaintiff; 13

6. Each creditor may renounce his right even against the will of
the debtor, and the latter need not thereafter pay the obligation
to the former;

7. Each one of the solidary creditors may execute acts which may
be useful or beneficial to the others, but he may not do
anything which may be prejudicial to them. 14 However,
prejudicial acts may still have valid legal effects, but the
performing creditor shall be liable to his co-creditors; and

8. As a general rule, a solidary creditor cannot assign his right

because it is predicated upon mutual confidence, meaning
personal qualification of each creditor had been taken into
consideration when the obligation was constituted. 15 However,
an assignment can be done when there is an assignment to a
co-creditor or the assignment is with the consent of a co-
creditor.

Illustrative Cases

1. Joey, Jovy and Jojo are solidary debtors under a loan obligation of PhP
300,000.00 which has fallen due. The creditor has, however, condoned
Jojo’s entire share in the debt. Since Jovy has become insolvent, the
creditor makes a demand on Joey to pay the debt.16

a. How much, if any, may Joey be compelled to pay?

Joey can be compelled to pay only the remaining balance of

PhP 200,000.00, in view of the remission of Jojo’s share by the
creditor.17

b. To what extent, if at all, can Jojo be compelled by Joey to contribute

to such payment?
13
CIVIL CODE, art. 1214.
14
Ibid at art. 1212.
15
Ibid at art. 1213.
16
Taken from the 1998 Bar Examinations.
17
CIVIL CODE, art. 1219.

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 Jojo can be compelled by Joey to
When one of the solidary debtors
insolvency, reimburse his share to
obligation, such share shall be borne
proportion to the debt of each.18
contribute PhP 50,000.00.
cannot, because of his
the debtor paying the
by all his co-debtors, in

Since the insolvent debtor’s share which Joey paid was PhP
100,000.00, and there are only two remaining debtors, Joey and
Jojo, these two shall share equally the burden of reimbursement.
Jojo may thus be compelled by Joey to contribute PhP 50,000.00.

2. Iya and Betty owed Jun PhP 500,000.00 for advancing their equity in a
corporation they joined as incorporators. Iya and Betty bound
themselves solidarily liable for the debt. Later, Iya and Jun became
sweethearts so Jun condoned the debt of PhP 500,000.00. May Iya
demand from Betty PhP 250,000.00 as her share in the debt?19

No. Iya may not demand the PhP 250,000.00 from Betty
because the entire obligation has been condoned by the creditor Jun.
In a solidary obligation the remission of the whole obligation obtained
by one of the solidary debtors does not entitle him to reimbursement
from his co-debtors.20

D. Divisible and Indivisible Obligations

Where the character of an obligation is either joint or solidary,

such characterization refers to the parties in an obligation. On the other
hand, divisibility or indivisibility refers to the prestation.

Divisible obligations are those which have as their object a

prestation which is susceptible of partial performance with the essence of
the obligation being changed.

On the other hand, indivisible obligations are those which have

as their object a prestation which is not susceptible of partial
performance, because otherwise the essence of the obligation will be
changed. The obligation is clearly indivisible because the performance of
the contract cannot be done in parts, otherwise, the value of what is
transferred is diminished.21

18
Ibid at art. 1217(3).
19
Taken from the 2015 Bar Examinations.
20
CIVIL CODE, art. 1220.
21
Nazareno v. Court of Appeals, G.R. No. 138842, October 18, 2000.

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 Note, however, that the divisibility of the object or the thing itself
does not necessarily determine the divisibility of the obligation; while the
indivisibility of the object carries with it the indivisibility of the
obligation.

Therefore, the test of divisibility is whether or not the prestation

is susceptible of partial performance, not in the sense of performance in
separate or divided parts, but in the sense of the possibility of realizing
the purpose which the obligation seeks to obtain. If a thing could be
divided into parts and as divided, its value is impaired
disproportionately, that thing is indivisible.

Factors to determine whether an obligation is divisible or

indivisible

1. The will or intention of the parties (express or implied)

2. The objective or purpose of the stipulated prestation
3. The nature of the thing
4. The provisions of law affecting the prestation

Obligations that are deemed indivisible

1. Obligations to give definite things

2. Those which are not susceptible of partial performance
- Thus, in obligations to give, those for the delivery of certain objects
such as an animal or a chair are indivisible.
- In obligations to do, indivisibility is presumed except when the
obligation has for its object the execution of a certain number of
days of work, the accomplishment of work by metrical units, or
analogous things which by their nature are susceptible of partial
performance, it shall be divisible.
3. Even the object or service may be physically divisible, an obligation is
indivisible if so provided by law or intended by the parties22
4. A pledge or mortgage is one and indivisible by provision of law, and
the rules apply even if the obligation is joint and not solidary 23

Obligations that are deemed divisible

When the object of the obligation involves:

1. Certain number of days of work;

2. Accomplishment of work by metrical unit; or

22
CIVIL CODE, art. 1225.
23
Ibid at art. 2089.

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 3. Analogous things which are by their nature susceptible of
partial performance.24

Effect of illegality of a part of a contract

1. Divisible contract
- illegal part is void and unenforceable
- legal part is valid and enforceable25

2. Indivisible contract
- entire contract is indivisible and unenforceable

Partial performance in indivisible obligation

In indivisible obligations, partial performance is equivalent to non-

performance. However, there can be partial performance where:

1. the obligation has been substantially performed in good faith,

the debtor may recover as if there had been complete
performance, less the damages suffered by the creditor; and

2. the creditor accepts performance knowing its incompleteness

and without protest, the obligation is deemed fully performed. 26

E. Joint Indivisible Obligations

The obligation is joint because the parties are merely

proportionately liable. It is indivisible because the object or subject
matter is not physically divisible into different parts. In other words, it is
joint as to liabilities of the debtors or rights of the creditors but
indivisible as to compliance.

A joint indivisible obligation gives rise to indemnity for damages

from the time anyone of the debtors does not comply with his
undertaking. The debtors who may have been ready to fulfill their
promises shall not contribute to the indemnity beyond the corresponding
portion of the price of the thing or of the value of the service in which the
obligation consists.27

Effects of different permutations of joint indivisible obligations

24
Ibid at art. 1225, par. 2.
25
CIVIL CODE, art. 1420.
26
See CIVIL CODE, arts. 1234-5.
27
CIVIL CODE, art. 1224.

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 1. If there are two or more debtors, compliance with the obligation
requires the concurrence of all the debtors, although each for his own
share. The obligation can be enforced only by preceding against all of
the debtors.

2. If there are two or more creditors, the concurrence or collective act of

all the creditors, although each of his own share, is also necessary for
the enforcement of the obligation.

3. Each credit is distinct from one another; therefore a joint debtor

cannot be required to pay for the share of another with debtor,
although he may pay if he wants to.

4. In case of insolvency of one of the debtors, the others shall not be

liable for his shares. To hold otherwise would destroy the joint
character of the obligation.28

Effect of breach of a joint indivisible obligation by one debtor

If one of the joint debtors fails to comply with his undertaking, and
the obligation can no longer be fulfilled or performed, it will then be
converted into one of indemnity for damages. Innocent joint debtor shall
not contribute to the indemnity beyond his corresponding share of the
obligation.

F. Solidarity v. Indivisibility

Criterion Solidarity Indivisibility

Refers to the vinculum Refers to the
As to the kind of
existing between the prestation or object of
unity it refers to
subjects or parties the contract
As to the
Does not require
requirement of Requires the plurality
plurality of subjects or
plurality of parties of parties or subjects
parties
or subjects
As to the effect of In case of breach, the In case of breach, it is
breach liability of the solidary converted to one of
debtors although indemnity for
converted into one of damages and the
the indemnity for indivisibility of the
damages remains obligation is
solidary terminated and so
each debtor is liable
only for his part of the
28
Ibid at art. 1209.

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 indemnity
Death of solidary
debtor terminates the Heirs of the debtor
As to the effect of solidarity, the tie or remain bound to
death of a party vinculum being perform the same
intransmissible to the prestation
heirs

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