OBLIGATIONS AND CONTRACTS

DISTANCE LEARNING LECTURE NO. 04

SECTION 4. - JOINT AND SOLIDARY OBLIGATIONS

An obligation has two (2) kinds:

1. Individual obligation;
2. Collective obligation.

INDIVIDUAL OBLIGATION – one where there is only one (1) obligor or

one (1) oblige.

COLLECTIVE OBLIGATION – one where there are two (2) or more

obligors/debtors and/or two (2) or more obligees/creditors.

A collective obligation may be:

1. Joint obligation;
2. Solidary obligation.

JOINT OBLIGATION – one where the whole obligation is to be paid or

fulfilled proportionately by the different debtors and/or is to be demanded
proportionately by the different creditors.

Words used to indicate joint liability:

1. Mancomunada;
2. Mancomunadamente;
3. Pro rata;
4. Proportionately;
5. “we promise to pay” signed by two (2) or more persons;

SOLIDARY OBLIGATION – one where each one of the debtors is bound

to render, and/or each one of the creditors has a right to demand from any
of the debtor, entire compliance with the prestation.

Words used to indicate solidary liability:

1. Jointly and/or severally;

2. Solidaria;
3. In solidum;
4. Together and/or separately;
5. Individually and/or collectively;
6. Juntos or separadamente;
7. “I promise to pay” signed by two (2) or more persons.
Under Art. 1207, there is a solidary liability only when:

1. When the obligation expressly so states, or

2. When the law requires solidarity; or
3. When the nature of the obligation requires solidarity.

If from the law, or the nature or the wording of the obligations

solidary liability DOES NOT appear, then the obligation is PRESUMED to be
JOINT. (Art. 1208). However, this presumption is rebuttable.

The existence of two (2) or more obligors/debtors and/or two (2) or

more obligee/creditors in an obligation does not automatically make the
liability SOLIDARY. To be considered as SOLIDARY OBLIGATION, it must
be clear from the law, or the nature of the obligation, or the wording of the
obligation that the liability is solidary.

SOLIDARITY IS NOT PRESUMED

The presumption where there are two (2) or more persons in the
same obligation is that it is joint.

The reason is that solidary obligations are very burdensome for they
create unusual rights and liabilities. Solidarity between debtors and
creditors increases their responsibility while solidarity between creditors
increases the right of each creditor. The law tends to favor the debtors in
presuming that they are bound jointly and not solidarily.

KINDS OF SOLIDARITY:

A. According to the parties bound:

1. Passive solidarity - solidarity on the part of the debtors, where
any one of them can be made liable for the fulfillment of the entire
obligation.

Illustration:

A and B are solidary debtors of C in the amount of ₱10,000.

C, the creditor, may demand from either A or B, or both (A and

B) simultaneously, the whole amount of ₱10,000.00 (the entire
obligation).

Payment by either A (or B) will extinguish the entire obligation

but A (or B) may claim from B (or A) a reimbursement for his share
depending upon the agreement between them.
 In any case, C cannot collect more than ₱10,000.00 which is the
extent of his credit.

2. Active solidarity – solidarity on the part of the criditors, where

any one of them can demand the fulfillment of the entire
obligation.

Illustration:

A is liable for ₱10,000 in favor of B and C, solidary creditors.

A may pay either B or C. Until the amount of ₱10,000.00 (the

entire obligation) is paid, B and C can demand payment from A. If B
(or C) received payment, he is liable to C (or B) for the latter’s share
in the credit according to their agreement.

The liability of A cannot exceed ₱10,000.00 which is the extent

of his obligation/liability.

3. Mixed solidarity – solidarity on the part of the debtors and

creditors, where each one of the debtors is liable to render, and
each one of the creditors has a right to demand, entire compliance
with the obligation.

Illustration:

A and B are solidarily liable to C and D, solidary creditors, in the

amount
of ₱10,000.

A (or) B) can pay either C or D. C (or D) can demand from

either A or B. The payment by A (or B) of ₱10,000.00 shall extinguish
the the entire obligation. A (or B) may claim his reimbursement from
B (or A) the amount of ₱5,000, or such amount agreed upon
between them.

C (or D) is liable to give D (or C) the latter’s share of ₱5,000.00,

or the amount agreed upon between them.

B. According to source:
1. Conventional solidarity – when solidarity is agreed upon by the
by the parties. If the contract is silent as to solidarity, the
obligation is JOINT pursusant to Article 1208.

A and B bound themselves to pay, jointly and/or severally, the

amount of ₱10,000 to C.
 2. Legal solidarity – when solidarity is imposed by the law.

Instances:

a) Even when the agent has exceeded his authority, the principal
is solidarily liable with the agent if the former allowed the
latter to act as though he had full powers. (Art. 1911)
b) All partners are solidarily iable with the partnership for any
crime or quasi-delict committed by any partner acting in the
ordinary course of business of the partnership or with the
authority of his co-prtners. (Arts. 1822-1824)
c) If two or more persons have appointed an agent for a
common transaction or undertaking, they shall be solidarily
liable to the agent for all the consequences of the agency (Art.
1915)
d) When there are two (2) or more bailees to whom a thing is
loaned in the same contract, they are liable solidarily. (Art.
1945)
e) The responsibility of two (2) or more payees, when there has
been a payment of what is not due, is solidary. (Art. 2157)
f) The responsibility of two (2) or more persons who are liable
for a quasi-delict is solidary. (Art. 2194)
g) If the engineer or architect supervises the construction of a
buuilding, he shall be solidarily liable with the contractor for
damages for any defect in the construction. (Art. 1723)
h) In a felony (crime), the principal, accomplices, and
accessories, each within their respective class, shall be liable
severally (in solidum) among themselves for their quotas, and
subsidiarily for those of other persons liable. (Art. 110, Revised
Penal Code)

3. Real solidarity. – when solidarity is imposed by the nature of the

obligation.

Examples:

a) The onature of the obligation of employers to pay indemnity or

compensation for death or injury caused to their employees
while in the performance of their assigned duty is solidary;

b) The award of exemplary damages, where vehicle operated

under so-called “kabit system” which figured in an accident, is
payable jointly and severally by the operator and the grantee of
the certificate of public convenience.

ART. 1209.

The article speaks of a JOINT INDIVISIBLE OBLIGATION:

  The obligation is JOINT because the parties are merely
proportionately liable.

 The obligation is INDIVISIBLE because the object or subject matter

is NOT PHYSICALLY DIVISIBLE into different parts.

 The obligation is JOINT as to liablilities of the debtors or rights of

the creditors but INDIVISIBLE as to compliance.

ILLUSTRATION:

1) A,B and C are jointly liable to give D a car valued at ₱240,000. On the
date of delivery, A and B are willing to deliver but C is not.

Consequences:

a) D has no cause of action against C for the delivery of the car

because, as a joint debtor, C is liable only for a proportionate
part of the obligation which is ₱80,000.

b) Since the car (object or subject matter) is indivisible, the debt

can only be enforced by proceeding against all the debtors for
compliance is not possible unless A, B and C act together.

c) Under Art. 1224, the liability is converted into one for damages.
Hence, A, B and C will be liable for ₱80,000 each or a total of
₱240,000 which is the value of the car without incresing the
responsibility of A and B. C, the unwilling debtor, shall be liable
for damages to D for having violated the obligation.

d) If A and B suffered damages by reason of non-fulfillment by C,

they may recover them from C.

e) Should anyone from A, B or C be insolvent, the others shall not

be liable for their share. D must wait until the insolvent debtor
can pay.

2) A obliged himself to give D and E a car valued at ₱240,000.

Consequences:

a) A can deliver the car to D and E jointly.

b) A can insist that both D and E together accept the car and if
either of them refuses to join the other, A may legally refuse to
 deliver the car. He may deposit the car in court by way of
consignation.

(NOTE: Consignation will be discussed under the topic:

extinguishment of obligations.)

c) If A becomes liable to pay damages for non-performance, D

and E can recover only their respective shares in the indemnity.
d) Neither D nor E may do anything which may be prejudicial to
the other, like renouncing or assigning the entire obligation
without consent of the other. This is so because the obligation
is joint, i.e., the credit of D is separate from that of E;
thereofre, neither D nor E can act in representation of the
other.

ART. 1210. The indivisibility of an obligation does not

necessarily give rise to solidarity. Nor does solidarity of itself
imply indivisibility.

 The liability in indivisible obligation may be either joint or

solidary.
 In solidary obligation, the subject matter may be divisible or
indivisible.

Indivisiblity and solidarity distinguished:

INDIVISIBILITY SOLIDARITY
Refers to the prestation Refers to the juridical or legal tie
that binds tie.
In indivisible obligations, only the In solidary obligations, all the
debtor guilty of breach of obligation debtors are liable for the breach of
is liable for damages the obligation committed by a
debtor.
Can exist although there is only one There must be at least two (2)
(1) debtor and one (1) creditor debtors or two (2) creditors
In indivisible obligations, the others In solidary obligations, the other
are not liable in case of insolvency debtors are proportionately liable.
of
one (1) debtor.

ART. 1211. Solidarity may exist although the creditors and

the debtors may not be bound in the same manner and by the
same periods and conditions.

There may be solidary obligation even if the parties (debtors and

creditors) agreed to be bound by different period, terms and condition on
the same obligation.
Illustration:

A, B, C and D obliged themselves solidarily to pay E ₱20,000 as

follows:

A, to pay by installment at the rate of ₱1,000 a month to start July;

B, to pay in September; C, to pay in December; and D, if F passes the CPA
examination.

a) In July, E can demand only ₱1,000 from A. E can also make a

demand from B, C, and/or D the ₱1,000 share corresponding to A. But E
cannot recover yet the share of B, C, and D if E passes the CPA
examination because the said shares are not yer due and demandable
under the terms agreed upon.

b) In September, E entitled to collect from any of the solidary

debtors (A, B, C or D) the share corresponding to B which is ₱5,000 (1/4 of
₱20,000) and A, ₱1,000 or ₱3,000, if A had not yet paid any installment for
July, August and September. The shares of C and D are not yet recoverable
because the same are not yet due and demandable under the agreement.

c) In December, E can recover from any of the solidary debtors (A,

B, C or D) the share corresponding to C in the amount of ₱5,000 plus such
amounts from the shares of A and B which have not yet been paid. The
share of D will be recovered only after E passess the CPA examination.

d) If E passess the CPA examination, the obligation of D to pay

₱5,000 arises. This amount can be demanded from any of the solidary
debtors (A, B, C or D). Again, E is also entitled to recover all amounts
which are already due and demandable and unpaid pertaining to the
shares of A, B, and C.

e) If the agreement is that E may demand the entire obligation

(₱20,000) from B in September, from C in December, or From D if E passes
the CPA examination, then B is liable for ₱20,000 in September less the
amount, if any, already paid by A and D. C is liable for ₱20,000 in
December less the amount, if any, already paid by A, B, and D. D is liable
for ₱20,000 if E passes the examination less the amount, if any, already
paid by A, D, and C.

ART. 1212. 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.

ART. 1215. Novation, compensation, confusion or remission

of the debt, made by any of the solidary creditors or with any of
the solidary debtors, shall extinguish the obligation, without
prejudice to the provision of Art. 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. (1143)

In solidary obligations, the creditor/s may do any act which is

beneficial or useful to the others, but he cannot do any act which is
prejudicial to the other solidary creditors.

Arts. 1215 provides for the effect and consequences of an act

prejudicial to the other creditors. Novation, compensation, and remission of
debt are modes or causes of extinguishment of obligations, and therefore,
would prejudice the right of the other solidary creditors. Logically, the
solidary creditor who made any of the said acts should be held liable for
the respective shares of the other solidary creditors.

Example:

A, debtor of B, C and D, solidary creditors in the amount of ₱30,000.

If B validly condones the debt in the amount of ₱30,000, B shall be liable for
₱10,000 each to C and D. If B validly condones the debt in the amount of
₱15,000, B shall be liable for ₱5,000 each to C and D.

ART. 1213. A solidary creditor cannot assign his rights

without the consent of the others.

Reason: Each creditor represents the others and the assignee may not
have confidence of the original solidary creditors considering that the
assignee after receiving payment may not give the shares to the others.
Art. 1178)

If the assignment is made to a co-creditor-the consent of the other

creditors is not necessary.

ART. 1214. The debtor may pay anyone of the solidary

debtors; but if any demand, judicial or extrajudicial, has been
made by one of them, payment should be made to him.

Payment by the debtor to any one of the solidary creditors

extinguishes the obligation.

However, if any demand, judicial or extrajudicial, has been made by

anyone of the solidary creditors, payment should be made to the solidary
creditor who made the demand.
 If the debtor made the payment to the solidary creditor who did not
make the demand, such payment will not extinguish the obligation except
the share of the creditor-payee in case the latter does not give to the other
creditors their shares in the payment.

ART. 1216. 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. (1144a)

 Art. 1216 is not applicable to a joint obligation.

 In solidary obligation (passive solidarity), ANY ONE, or SOME, or ALL
of the solidary debtors SIMULTANEOUSLY, may be made to pay the
debt so long as it has not been fully collected.
 The choice is left to solidary creditor to determine against whom he
will enforce collection.

Illustration:

A, B, and C solidarily owe D the amount of ₱30,000. D can collect

from A or B or C alone, from any two (2) of them (A and B or A and C or B
and C), or all of them (A, B and C) simultaneously.

If demand is made on A, the latter cannot require D to make a

demand also on B and C, or to include them as party defendants, as D has
the right to proceed against any one of them.

If A pays D ₱10,000, D can still go against ALL of them (B anc C) for

the balance as long as the debt has not been entirely satisfied.

EFFECTS OF PAYMENT BY SOLIDARY DEBTOR:

1. Payment by one of the solidary debtors EXTINGUISHES the

obligation. If 2 or more solidary debtors offer to pay, the creditor for
his protection is given the right to choose which offer to accept.
(ART. 1217, paragraph 1)

Illustration:

A, B and C are jointly and severally liable to D and E in the amount of

₱30,000 due on March 5. Both A and B offered to pay D on March 5.

D may choose which offer to accept. Payment by A of the entire

obligation of ₱30,000 on March 5, the obligation is extinguished.
2. After payment of the debt which is due, the paying solidary debtor
CAN DEMAND REIMBURSEMENT from his co-debtors for their
proportionate shares WITH LEGAL INTEREST only from the time of
payment. (ART. 1217, paragraph 2)

Illustration:

A, B and C are jointly and severally liable to D and E in the amount of

₱30,000 due on March 5. Both A and B offered to pay D on March 5.
D accepted the offer and payment by A of the entire obligation of
₱30,000 on March 5 which extinguished the obligation. With his
payment, A was given the right to demand reimbursement from B
and C ₱10,000 each with legal interest from date of payment.

NOTE:

By virtue of such payment, the other debtors do not become solidary

debtors of a, the debtor-payer. Their (B and C) liability is not based
on original obligation which has been estinguished but upon payment
made by the co-debtor (A) which creates a joint ofbligation of
reimbursment on the part of the others. (Art. 1208)

3. If payment is made before the debt is due, NO INTEREST for the

intervening period may be demanded. (ART. 1217, paragraph 2)

Illustration:

A, B and C are jointly and severally liable to D and E in the amount of

₱30,000 due on March 5. D accepted the offer and payment by A of
the entire obligation of ₱30,000 on January 5 which extinguished the
obligation. With his payment, A was given the right to demand
reimbursement from B and C ₱10,000 each without legal interest
from date of payment.

4. Payment by a solidary SHALL NOT entitle him to reimbursement from

his co-debtors if such payment is made after the obligation has
prescribed or become illegal. (ART. 1218)

By prescription, one acquires ownership and other rights through the

lapse of time in the manner and under the conditions laid down by
law.

In the same way, rights and actions are lost by prescription” (ART.
1106)
 Prescriptive periods of actions:

“The following actions must be brought within ten (10) years from
the time the right of action accrues:

1) Upon a written contract;

2) Upon an obligation created byn law;
3) Upon a judgment.(Art. 1144)

“The following actions must be commenced within six (6) years:

1) Upon an oral contract;

2) Upon a quasi-contract.” (Art. 1145)

The following actions must be instituted within four (4) years:

1) Upon an injury to the rights of the plainiff;

2) Upon a quasi-delict.” (Art. 1146)

Illustrations:

On prescription:

A. A and B are solidarily indebted to C for ₱10,000. In their promissory

note, they will pay on or before April 30, 2009. On March 10, 2020, A
paid C the ₱10,000 loan.

A cannot collect from B the share corresponding to the latter because

the obligation has already prescribed when the former paid the debt. A
cannot also recover from C what he has paid because “when a right to
sue upon a civil obligation has lapsed by extinctive prescription, the
obligor cannot recover what he has delivered or the value of the
services he has rendered.” (Art. 1424)

Obligation has become illegal:

B. A and B bound themselves solidarily to deliver 10 carabaos to C for

slaughter purposes. Later, a law which prohibits the slaughter of
carabaos took effect. Nevertheless, A delivered the carabaos knowing
that the slaughter of carabaos is already prohibited by law.
 A cannot get reibursment from B because the payment was made
after the obligation has become illegal.

5. In case of insolvency of solidary debtor/s, his/their shares shall be

borne by ALL his/their co-debtors in proportion to the debt of each.
(ART. 1217, paragraph 3)
6. The receiving creditor is jointly liable to the others for their
corresponding shares. (ART. 1208)

Illustration:

A, B and C are jointly and severally liable to D and E in the amount of

₱30,000 due on March 5. Both A and B offered to pay D on March 5.
D accepted the offer and payment by A of the entire obligation of
₱30,000 on March 5 which extinguished the obligation.

D has the obligation to give E his corresponding share in the credit

according to their agreement.

ART. 1219. 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. (1146a)

What is remission?

Remission is the gratuitous abandonment by the creditor of his right

against the debtor. It is also known as condonation of debt.

NOTE”
 If payment is made by one of the co-debtors, remission or waiver
made by the creditor is of no effect. There is no more obligation to
remit.

 If remission is made previous to the payment and payment is made,

solutio indebiti arises. It is incumbent upon the debtor whose debt is
remitted to prove the priority of the remission to the payment to
release him from responsibility towards his co-debtors.

 Remission by the creditor of the share affecting one of the solidary

debtors does not release him from his responsibility towards the
co- debtors in case the debt has been totally paid by any one of
the co- debtors before the remission was effected.

Illustration:
 1. A and B are liable in solidum to C in the amount of ₱10,000. C
remitted
the share of A.

Subsequent payment by B of ₱10,000 to C will not entitle him to

reimbursement from A since the remission extinguished the obligation
with respect to A’s share.

However, B can demand the return of ₱5,000 from C under the

principle
of solutio indebiti.

Payment by B before the remission , A is still liable to B because the

remission is without effect, the obligation having been extinguished
already by the payment.

2. A. B. And C are liable in solidum to D in the amount of ₱30,000. D

remitted the share of A. After paying D ₱20,000, the balance of credit,
B demands reimbursement from C who became insolvent after
remission.

A is obliged to contribute to the share of C because Art. 1217 says that

the share of the insolvent co-debtor “shall be borne by ALL his co-
debtors, in proportion to the debt of each.” Also, the remission can
only refer to the share of A in the obligation and cannot, therefore,
affect the responsibility to contribute to the share of C, the insolvent
debtor. A creditor has no right to alter the rights and obligations of the
solidary debtors as among themselves.

ART. 1220. The remission of the whole obligation obtained

by one of the solidary debtors does not entitle him to
reimbursement from his co-debtors. (n)

Illustration:

A. B. And C are liable in solidum to D in the amount of ₱30,000. D

remitted the entire amount in favor of A. In this case, A is not entitled to
reimbursement from B and C, co-debtors. The reason is that A who
obtained remission did not pay anuthing to D.

ART. 1221. 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 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 fortuitous event, the thing is lost or the

performance has become impossible after one of the solidary
debtors has incurred in delay through the judicial or extrajudicial
demand upon him by the creditor, the provisions of the preceding
paragraph shall apply. (1147a)

Rules in case thing has been lost or prestation has become

impossible:

1) without fault or performance has become impossible and before

delay, the obligation is extinguished.

Illustration:

A, B, and C promised solidarily to deliver to D a particular truck

valued at ₱150,000. Before date of delivery and without fault of the
debtors, a lightning struck and destoryed the truck.

A, B, and C’s solidary obligation to deliver the truck is extinguished.

2) due to the fault on the part of a solidary debtor, ALL shall be

responbile to the creditor for the price and the payment of
interest, without prejudice to their action against the guilty or
negligent debtor.

Illustration:

A, B, and C promised solidarily to deliver to D a particular truck

valued at ₱150,000. Before date of delivery but due to the fault of A,
the truck was lost.

A, B, and C shall be responsible to D for ₱150,000, the price of the

truck and damages although B and C were not at fault at all. As far
as the creditor is concerned, the fault or delay of one of the solidary
debtor shall be the fault or delay of all the solidary debtors.

B and C, however, can recover from A, the guilty or negligent debtor,

the full amount of ₱150,000 and damages, if B and C have already
contributed to the price of the truck.

If D recocvers the price and damages from A, the latter cannot claim
reimbursement from B anc C, because he alone was at fault.
 3) due to fortuitous event or performance has become impossible but
solidary debtor has incurred in delay, ALL shall be responbile to
the creditor for the price and the payment of interest

Illustration:

A, B, and C promised solidarily to deliver to D a particular truck

valued at ₱150,000. Due to fortuitous event but after a demand was
made upon C and before delivery, the truck was lost.

D can recover the value of the truck and damages from A or B, or

both A and B without prejudice to the right of of action of A and B
against C.

The default of C makes all the solidary debtors responsible even for
fortuitous event pursuant to Art. 1170, par. 3.

ART. 1222. A solidary debtor may, in actions filed by the

creditor, avail himself of all defenses which are derived from the
naure 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 which the latter are responsible. (1148a)

Defenses availbale to a solidary debtor:

1) derived from the nature of the

obligation; Illustration:

A and B are solidarily liable to C in the amount of ₱40,000. The entire

debt of A and B was paid by D. C sued A for debt.

A can raise the defense of payment by virtue of which the obligation

was extinguished.

A defense derived from the nature of the obligation is a complete

defense because it nullifies the obligation or renders it ineffective.

(Other defenses are fraud, prescription, remission, illegality or absence

of consideration, res judicata, non-performance of a suspensive
condition.)

2) personal to, or which pertain to share of, debtor sued;

 Illustration:

a) A and B are solidarily liable to C in the amount of ₱40,000. The

entire debt of A and B was paid by D. C sued B for debt. B was
insane at the time the obligation was contracted.

B can raise the defense of insanity with respect to the entire

obligation. The defense of insanity is personal to B alone. It is a
complete defense.

(Other defenses are: incapacity, mistake, violence, minority, etc.)

b) If the portion of the obligation affecting B is subject to suspensive

condition which has not yet happened, the non-fulfillment of the
condition is a partial defense as it can be set up by B only with
respect to his share.

C can demand from B the portion of the obligation pertaining to A

because B is solidarily liable.

3) personal to other solidary debtors.

In the illustrations a) and b) above, the defense of insanity or non-

fulfillment of the suspensive condition is not available to A as to release
him from his responsibility for his share in the obligation.

A may avail himself of the defense of insanity or non-fulfillment of

suspensive condition as regards that part of the debt fro which B is
liable. Hence, having only a partial defense, A stil liable for ₱20,000, his
share in the obligation.

REFERRENCE: LAW ON OBLIGATIONS AND CONTRACTS BY HECTOR S.

DE LEON