When there is a concurrence of two or more debtors and or two or more creditors in one and the same obligation the obligation is presumed to be?

Details Category: Obligations and Contracts

General Rule:

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.

Exceptions:

The obligation shall be solidary when:

1. Expressly stipulated that there is solidarity;

2. Law requires solidarity;

3. Nature of the obligation requires solidarity;

4. Charge or condition is imposed upon heirs or legatees and the will expressly makes the charge or condition in solidum (Manresa); or

5. solidary responsibility is imputed by a final Judgment upon several defendants.(Gutierrez v. Gutierrez, 56 Phil 177)

Details Category: Obligations and Contracts

The Undertaking or contract to secure a loan agreement uses the word “sureties” althroughout the document in describing the parties. It is further contended that the principal objective of the parties in executing the Undertaking cannot be attained unless they are solidarily liable “because the total loan obligation can not be paid or settled to free or release the Obligors if one or any of the Sureties default from their obligation in the Undertaking.”The contention is not correct. In case there is a concurrence of two or more creditors or of two or more debtors in one and the same obligation, Article 1207 of the Civil Code states that among them, there is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. Article 1210 supplies further caution against the broad interpretation of solidarity by providing: “The indivisibility of an obligation does not necessarily give rise to solidarity. Nor does solidarity of itself imply indivisibility.”These Civil Code provisions establish that in case of concurrence of two or more creditors or of two or more debtors in one and the same obligation, and in the absence of express and indubitable terms characterizing the obligation as solidary, the presumption is that the obligation is only joint. It thus becomes incumbent upon the party alleging that the obligation is indeed solidary in character to prove such fact with a preponderance of evidence.

The Undertaking does not contain any express stipulation that the parties agreed “to bind themselves jointly and severally” in their obligations, or any such terms to that effect. hence, such obligation established in the Undertaking is presumed only to be joint. (Escaño, et al. v. Ortigas, Jr., G.R. No. 151953, June 29, 2007, Tinga, J).

(1) Joint Distinguished from Solidary Obligations

In a joint obligation “each obligor answers only for a part of the whole liability and to each obligee belongs only a part of the correlative rights.” Whereas, in “a solidary or joint and several obligation, the relationship between the active and the passive subjects is so close that each of the former or of the latter may demand the fulfillment of or must comply with the whole obligation.” (8 Manresa 194). Stated otherwise, the following are the maxims to remember:

1. (a)  Joint Obligations — “To each his own.’’
2. (b)  Solidary Obligations — “One for all, all for one.”

(2) Examples

For Joint Obligations:

1. (a)  A and B are joint debtors of C to the amount of P1,000,000. C can demand only P500,000 from A, and only P500,000 from B.
2. (b)  A and B are joint debtors of C, D, E, and F, who are joint creditors to the amount of P1,000,000. C may demand only P125,000 from A, and P125,000 from B. D, E, and F, have the same rights as C.

For Solidary Obligations:

1. (a)  A and B are solidary debtors of C to the amount of P1,000,000. C can demand the whole P1,000,000 from A. A in turn, after paying C, can ask reimbursement from B to the amount of P500,000.
2. (b)  A and B are solidary debtors of C, D, E, F, solidary creditors, to the amount of P1,000,000. Any creditor, like C, can demand from any debtor, like A, the whole P1,000,000. In turn, C has to give P250,000 each to D, E, and F. B has to reimburse A for P500,000 which is really B’s share of the obligation.

(3) General Rule and Exceptions

Where there are two or more debtors or two or more creditors, the obligation is:

General Rule — Joint

Exceptions —

1. (a)  when there is a stipulation in the contract that the obligation is solidary
2. (b)  when the nature of the obligation requires liability to be solidary
3. (c)  when the law declares the obligation to be solidary

(4) Some Instances Where the Law Imposes Solidary Liability

1. (a)  obligations arising from tort
2. (b)  obligations arising from quasi-contracts
3. (c)  legal provisions regarding the obligations of devisees and legatees
4. (d)  liability of principals, accomplices, and accessories of a felony
5. (e)  bailees in commodatum

(5) Query

May the obligation be joint on the side of the creditors and solidary on the side of the debtors or vice-versa?

ANS.: Yes. “In such cases, the rules applicable to each subject of the obligation should be applied, the character of the creditors or the debtors determining their respective rights and liabilities.” (8 Manresa, pp. 201-202).

Examples:

(a) A and B are joint debtors of C, D, E, and F, solidary creditors to the amount of P1,000,000. How much can C collect from A?

ANS.: C is a solidary creditor, so presumably he can collect the whole debt. But since A is only a joint debtor, C is entitled to collect only P500,000 from A.

A and B are solidary debtors of C, D, E, and F, joint credi- tors to the amount of P1,000,000. How much can C recover from A?

ANS.: Since C is only a joint creditor, he can only recover his share which is P250,000 from A, a solidary debtor.

(NOTE: Had C been solidary creditor, he could have recovered P1,000,000 from A; had A been a joint debtor, and C, also a joint creditor, C could have recovered only P125,000 from A.)

(6) Some Decided Cases

Uk Pa Leung v. Nigorra 9 Phil. 381

FACTS: The defendants, as partners in the management of a bakery, owed the plaintiff the amount of P43.35. The trial court ordered each of the defendants liable for the whole amount (in solidum). Nigorra appealed this point.

ISSUE: In the absence of any fact or law which would make the defendants solidarily liable, are they jointly or solidarily responsible?

HELD: The presumption is that they are only jointly liable. Hence, Nigorra should pay only half of the debt.

Pimentel v. Gutierrez 14 Phil. 49

FACTS: Three persons signed a contract. No words were used to make each liable for the whole amount.

HELD: Each one is liable only for his proportion or aliquot share of the obligation. “If three persons sign a contract under the provisions of the Civil Code, and no words are used to make each liable for the full amount, each is only liable for the proportionate amount of the contract. From a reading of the contract in question, it will be seen that it is una obligacion mancomunada y no solidaria and that the three debtors are not liable separately for the payment of the whole amount. They are each liable for an aliquot part of the original obligation.”

De Leon v. Nepomuceno and De Jesus 37 Phil. 180

FACTS: In an election contest, the protestee and the intervenor were sentenced to pay the costs and expenses of the contest. Issue: Is the obligation joint or solidary?

HELD: The obligation is joint. “A final judgment for costs and expenses in an election contest providing that the costs and expenses of the intervenor is a joint and NOT a joint and several judgment for costs and expenses.” “If a judgment does not specify how certain debtors are bound it is presumed that they are bound ‘jointly’ and not ‘solidarily’.’’ (Uk Pa Leung v. Nigorra, 9 Phil. 381; Floriano v. Delgado, 11 Phil. 154; White v. Enriquez, 15 Phil. 113; De Leon v. Nepomuceno and De Jesus, supra).

Parot v. Gemora 7 Phil. 94

FACTS: Two people borrowed money and signed a promis- sory note promising to pay “juntos o separadamente.” Are they jointly or solidarily liable?

HELD: They are solidarily liable. “We are of the opinion, and so hold that the phrase ‘juntos o separadamente’ used in this promissory note, is an express statement, making each of the persons who signed it individually liable for the payment of the full amount of the obligation contained therein. The phrase juntos o separadamente used in a contract creates the same obligation as the phrase mancomun o insolidum. The words ‘separadamente’ and ‘insolidum’ used in a contract in connection with the nature of the liabilities of the parties are sufficient to create an individual liability.”

Calo, Jr. v. Cabanos L-19704, Oct. 19, 1966

If a father is a debtor and he dies, his heirs, up to the value of the inheritance, are liable. Thus, before the heirs share in the inheritance, the debt must first be paid. Thus also, it is not accurate to say that the heirs are solidarily liable for the debt of their father.

Oriental Commercial Co., Inc. v. Felix Lafuente (C.A.) 38 O.G. 947

FACTS: To guaranty the obligation incurred by Felix Laf ente, a group of men executed a bond in favor of the Oriental Commercial Co., where they promised to answer “individually and collectively for the total amount.”

ISSUE: Are the sureties here jointly or solidarily liable?

HELD: They are solidarily liable, and everyone is individually responsible for the full payment of the obligation.

Worcester v. Ocampo, et al. 22 Phil. 42

FACTS: A and B were both responsible in causing an in- jury to C through their (A’s and B’s) negligence. C brought an action against both. A maintains that his liability is only joint, not solidary. Issue: Are joint tortfeasors (those liable for a tort) jointly or solidarily liable?

HELD: They are solidarily liable. “If several persons jointly commit a tort, the plaintiff or the person injured has his election to sue all or some of the parties jointly, or one of them separately because the tort is in its nature a separate act of each individual. (1 Chidey, Common Law Pleadings 86). It is not necessary that the cooperation should be a direct, corporeal act. It may be stated as a general rule that joint tortfeasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate, aid or abet the commission of a tort or who approve of it after it is done. They are each liable as principals, to the same extent, and in the same manner as if they had performed the wrongful act themselves.” (Cooley on Torts, 133; Moir v. Hopkins, 16 Ill. 313).

Abella v. Co Bun Kim, et al. 100 Phil. 1019

ISSUE: What is the liability of a debtor and the receiver of his property (as assignee in insolvency) — joint or solidary?

HELD: The rules concerning joint and solidary obligations (obligaciones mancomunadas y obligaciones solidarias) require a plurality of subjects (creditors, debtors, or both), and have no application when there is only one creditor and one debtor, even if payment is to be made by several individuals, representing one and the same interest or debtor. Thus, the liability of a debtor and the receiver of his property in a litigation cannot be said to be joint or solidary because the receiver does not represent an interest completely distinct and separate from the owner of the property, but is merely the custodian of the property, and an extension of the personality of the latter.

Tamayo v. Aquino L-12634-12720, May 29, 1959

FACTS: A, registered operator (in the Public Service Com.) of a common carrier, sold the vehicle to B without prior approval of the Commission. B then operated the vehicle. An accident took place one day, injuring a passenger of B. Issue: Are A and B jointly or solidarily liable?

HELD: Only A, the registered owner is liable, but he can recover indemnity from B. Since only one is liable, the distinction between joint and solidary liability does not exist. A is liable as a result of the culpa contractual (not culpa aquiliana) because the vehicle was still registered under his name. This is true even if the property had already been sold to another at the time the accident took place. If the rule were otherwise, a registered owner can easily evade responsibility by collusion with others who may possess no property to answer for the damages. (See Erezo v. Jepte, GR L-9605, Sept. 30, 1957).

NOTE: In Caners, et al. v. Arias, et al., (Court of Appeals) GR L-24881-R, March 4, 1961, it was held that if the vehicle which figured in an accident was operated under the so-called “kabit system,” the award of exemplary damages, among others, payable jointly and severally by the operator and the grantee of the certificate of public convenience is justified. This pernicious system is not only a violation of law but a fraud upon the trav- elling public, which has a right to expect that the holder of the certificate be the one to actually operate his transportation line, hire the drivers, and other employees and exercise the necessary supervision over them.

Jereos v. Court of Appeals L-48747, Sept. 30, 1982

In a civil action due to a quasi-delict (culpa aquiliana), the registered owner, the actual owner, and the driver of the jeep involved are solidarily liable. (See Erezo v. Jepte, 102 Phil. 103; Tamayo v. Aquino, 105 Phil. 949; and De Peralta v. Mangusang, 120 Phil. 582).

Fe Perez v. Josefina Gutierrez, et al. L-30115, Sept. 28, 1973

FACTS: Gutierrez, holder of a certificate of public convenience and authorized to operate an auto-calesa in the province of Davao, sold the vehicle to Alajar. The sale, at the time of the accident, had not been approved by the Public Service Commission, and was therefore not registered with such Commission. Later, thru the reckless imprudence of its driver, Cordero, the vehicle met an accident resulting in injuries to Perez, one of its passengers.

ISSUE: Who should be held liable to Perez?

HELD: The registered owner, Gutierrez, should be the one directly liable to Perez (See Erezo v. Jepte) despite the transfer of the vehicle to another. In dealing with vehicles registered under the Public Service Law, the public has right to presume that the registered owner is the actual owner thereof, for it would be difficult for the public to enforce the action for damages for injuries caused to them by vehicles being negligently operated, if the public should be required to prove who the actual owner is. The transferee, however, should in turn be responsible to the registered owner for in operating the vehicle without its transfer having been approved by the Public Service Commission, the transferee acted merely as an agent of the registered owner and should be responsible to him. The driver should also be held liable solidarily with Gutierrez to Fe Perez in accordance with the provisions of Art. 2184 in relation to Art. 2180 of the Civil Code. (NOTE: The driver was also held liable on the basis of a quasi-delict, there being no contractual relation between him and the passenger.)

Gonzales v. Halili, et al. L-11521, Oct. 31, 1958

The liability of two motor vehicle drivers convicted for in- juries thru reckless imprudence is solidary. Consequently, the employer of each of them is also solidarily liable with respect to his subsidiary liability, as said liability must necessarily be co-extensive with the judgment against his employee.

Republic Planters Bank v. CA GR L-93073, Dec. 21, 1992

In the case at bar, the solidary liability of private respondent Fermin Canlas is made clearer and certain, without reason for ambiguity, by the presence of the phrase “joint and several” as describing the unconditional promise to pay to the order of Republic Planters Bank.

A joint and several note is one in which the makers bind themselves both jointly and individually to the payee so that all may be sued together for its enforcement, or the creditor may select one or more as the object of the suit. A joint and several obligation in common law corresponds to a civil law solidary obligation, i.e., one of several debtors bound in such wise that each is liable for the entire amount, and not merely for his proportionate share. By making a joint and several promise to pay to the order of Republic Planters Bank, private respondent Canlas assumed the solidary liability of a debtor and the payee may choose to enforce the notes against him alone or jointly with defendant Shozo Yamaguchi and Pinch Manufacturing Corp. as solidary debtors.

As to whether the interpolation of the phrase “and (in) his personal capacity” below the signatures of the makers in the notes will affect the liability of the makers, the Court does not find it necessary to resolve and decide, because it is immaterial and will not affect the liability of private respondent Canlas as a joint and several debtor of the notes. With or without the presence of said phrase, private respondent Canlas is primarily liable as a co-maker of each of the notes and his liability is that of a solidary debtor.

Article 1208. If from the law, or the nature or the wording of the obligations to which the preceding article refers the contrary does not appear, the credit or debt shall be presumed to be divided into as many shares as there are creditors or debtors, the credits or debts being considered distinct from one another, subject to the Rules of Court governing the multiplicity of suits.

by: Jayson Calventas

Kung mula sa batas, o sa katangian o sa pagkakasalita ng mga obligasyon na tinutukoy sa naunang artikulo ay hindi makikita ang kabaligtaran, ang kredito o utang ay dapat ituring na nahahati nang pantay sa sindaming bilang ng mga nagpautang o may utang, at ang mga kredito o mga utang na ito ay ituturing na hiwalay sa isa’t isa; ito man ay napaiilalim din sa Mga Panuntunan ng Hukuman na namamahala sa mga maramihang demanda.

• each debtor is liable for his own debt
• each creditor can collect only that which is due him

• each debtor may be held liable for the whole amt.
• each creditor may collect the whole amt. due all creditors

1. “solidarily liable”
2. “each debtor may be compelled to pay the whole obligation”

Article 1209. If the division is impossible, the right of the creditors may be prejudiced only by their collective acts, and the debt can be enforced only by proceeding against all the debtors. If one of the latter should be insolvent, the others shall not be liable for his share.

by: Jeirome Domingo

COMMENT: (1) Indivisible Joint Obligation

This Article speaks of an indivisible joint obligation (in- divisible — referring to the OBJECT; joint — referring to the TIE between the parties, who are merely proportionately liable, unless solidarity has been stipulated by the parties or the law, in which case, it is called a solidary indivisible obligation).

(2) Example of a Joint Indivisible Obligation

A and B are jointly liable to give C this particular car.

(3) Manresa’s Comment

“The obligation is in a sense midway between the joint and the solidary, although it preserves the two characteristics of the joint obligation in that: (a) no creditor can do an act prejudicial to the others, and (b) no debtor can be made to answer for the others. The peculiarity of this obligation, however, is that its fulfillment requires the consent of all the debtors, although each for his part. On the side of the creditors, collective action is also required for acts which may be prejudicial.” (8 Manresa 197).

(4) Characteristics

1. (a)  The obligation is joint but since the object is indivisible, the creditor must proceed against ALL the joint debtors (Art. 1209), for compliance is possible only if all the joint debtors would act TOGETHER.
2. (b)  Demand must, therefore, be made on ALL the joint debt- ors.
3. (c)  If any one of the debtors does not comply with his monetary obligation for damages. (Art. 1224, Civil Code; 8 Manresa 237-238).
4. (d)  If any of the joint debtors be insolvent, the others shall not be liable for his share. (Art. 1209, Civil Code).

(NOTE: The obligation to pay monetary damages is of course no longer indivisible, and therefore, the creditor may go against each debtor individually, subject to the provisions of the Rules of Court.)

1. (e)  If there be joint creditors, delivery must be made to all, and not merely to one, unless that one be specifically authorized by the others.
2. (f)  Each joint creditor is allowed to renounce his proportionate credit.

(5) Example

A, B, and C are jointly liable to give a particular car worth P1.2 million in favor of D, E, F, and G. A is insolvent and the debtors, therefore, cannot purchase the car to give to the credi- tors. D and E have renounced their rights. The debtors are not in default. How much can each of the creditors get from each of the debtors?

ANS.: Since this is a joint and indivisible obligation and since the car cannot be given, it is converted into an obligation to give indemnity for damages. Since this is a joint obligation, each debtor is proportionately liable and each creditor is only entitled to his proportional credit.

P1.2M divided by 3 = P400,000 (the total debt of each debtor)

P 400,000 divided by 4 = P100,000 (the credit belonging to each joint creditor, not from each

joint debtor). A is insolvent, and his share will not be included in the

liability of B and C. Therefore:

1. (a)  D and E having renounced their rights, they get
2. (b)  F has not renounced his right, so he can get P100,000 from B and P100,000 from Over A, F has the rights of creditor over an insolvent debtor.
3. (c)  G has exactly the same rights as F.

(6) A Demand by One Joint Creditor Is Not a Demand by the Others

In a joint indivisible obligation, if one of the joint creditors makes a demand upon one of the debtors, there is no doubt that the debtor is in default with reference to the demanding credi- tor’s share. Is she also in default with reference to the others?

ANS.: Although it would seem that the answer is YES, because this act benefits, and does not prejudice the others, and is therefore implicitly what the law provides (See 8 Manresa 197), still it should be borne in mind that the credits are still independent of one another (See by analogy from the decision of the Supreme Court of Lousiana, Buard v. Lemes Syndic., 12 Robinson’s Reports, p. 243), and, therefore, the answer should be NO.

Article 1210. The indivisibility of an obligation does not necessarily give rise to solidarity. Nor does solidarity of itself imply indivisibility.

by: Johannes Aquino

Maaring habulin ng kreditor ang sino man sa mga solidary debtors, ilang sa kanila or kahit lahat sila ng sabay sabay. Ang paghabol sa isa ay hindi hadlang sa paghabol sa iba hanggat hindi nasasakatuparan ang lahat ng obligasyon.

Indivisibility distinguished from solidarity.

 The differences are:

 (1) Indivisibility refers to the prestation, while solidarity refers to the juridical or legal tie that binds the parties;

 (2) In indivisible obligations, only the debtor guilty of breach of obligation is liable for damages, thereby terminating the agency, while in solidary obligations, all of the debtors are liable for the breach of the obligation committed by a co-debtor (Art. 1221.), for solidarity among them remains;

 (3) Indivisibility can exist although there is only one debtor and one creditor, while in solidarity, there must be at least two debtors or two creditors (Arts. 1207, 1208.);

(4) In indivisible obligations, the others are not liable in case of insolvency of one debtor, while in solidary obligations, the others are proportionately liable. (Art. 1217.)

The first sentence of Article 1210 simply means that the liability in an indivisible obligation may be either joint or solidary. The second sentence means that in a solidary obligation, the subject matter may be

divisible or indivisible. (see Art. 1225.)

Illustration:

 (1) Kitty and Baste are jointly liable to deliver to Leni Lowbredo a particular car. Here, the prestation is indivisible but the liability of Kitty and Baste is joint. We have what is called a joint indivisible obligation. (Arts. 1209, 1224.)

 (2) If Kitty and Baste obliged themselves solidarily to give the car to Leni Lowbredo, we have a solidary indivisible obligation — the obligation is indivisible and the liability of Kitty and Baste is solidary

 (3) A solidary obligation does not necessarily mean that the obligation is also indivisible. Thus, where Kitty and Baste promised in solidum to pay Leni Lowbredo P10,000.00, we have an example of a solidary divisible obligation.

 (4) Now, if Kitty and Baste are jointly liable to pay Leni Lowbredo P10,000.00, what we have is a joint divisible obligation. Money is divisible.

Article 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.

by: Kristia Capio

Artikulo 1211. Ang pagkakaisa ay umiiral bagamat ang pinagkakautangan at ang nagkakautang ay maaring hindi nakatali sa parehong paraan at sa parehong panahon at kondisyon.

The solidarity of the debtors is not affected even if different terms and conditions are made applicable to them.

Enforcement of the terms and conditions may be made at different times. The obligations which have matured can be enforced while those still undue will have to be awaited. Enforcement can be made against any one of the solidary debtors although it can happen that a particular obligation chargeable to a particular debtor is not yet due. He will be answerable for all the prestations which fall due although chargeable to the other co-debtors.

Forms of Solidarity According to Sanchez Roman

1. Uniform Solidarity – when the debtors are bound by the same terms and conditions or stipulations.
2. Varied Solidarity – when the debtors while bound under the same obligation (like a loan) are not subject to the same terms and conditions of payment but to different secondary stipulation or clauses.

Example: 

A, B, C, and D obliged themselves solidarily to pay E P20,000.00, as follows:

A, to pay by installment at the rate of P1,000.00 a month, to start in July; B, to pay in September; C, to pay in December; and D, if E passes the Bar examinations.

(a) In July, E can demand only P1,000.00 from A. E can also make a demand from B, C, and/or D the P1,000.00 share corresponding to A. But E cannot recover yet the shares of B, C, and D which are not yet due and demandable.

(b) In September, E is entitled to collect from any of the solidary debtors the share corresponding to B which is P5,000.00 and A, P1,000.00 or P3,000.00, if A had not yet paid any installment. The shares of C and D are not yet recoverable.

(c) In December, E can recover from any of the solidary debtors, the share corresponding to C in the amount of P5,000.00 plus such amounts from the shares of A and B which have not yet been paid. The share of D will mature only after E passes the Bar examinations.

(d) If E passes the Bar examinations, the obligation of D to pay P5,000.00 arises. This amount can be demanded from any of the solidary debtors. 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 from B in September, from C in December, or from D if E passes the Bar examinations, then B is liable for P20,000.00 in September less the amount, if any, already paid by A and D; C is liable for P20,000.00 in December less the amount, if any, already paid by A, B, and D. D is liable for P20,000.00 if E passes the Bar examinations less the amount, if any, already paid by A, B, and C.

Article 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.

by: Bryan Glenn Fabiaña

Bawat isa sa magkakasamang nag papautang ay puweding gumawa ng mga paki-pakinabang na hakbang para sa kapya at kasama niyang nag papautang maliban nalang sa mga hakbang na makaka pinsala sa kanila.

The general rule is that a solidary creditor may do any act which may be useful to the other solidary creditors such as:

1.) making of judicial or extra judicial demands to the debtor;

2.) filing of complaint so that the obligation may bear legal interest.

But not anything which may be prejudicial to the latter such as the acts of novation, compensation, confusion or merger of rights, remission or condonation.

There are novation when obligations are modified (1.) changing their object or principal conditions; (2) substituting the person of the debtor.

A (debtor) binds himself to deliver to X, Y and Z (solidary creditor) the amount of one hundred fifty thousand pesos (150,000). X, one of the solidary creditor change the obligation of A from one hundred thousand pesos to forty five(45) sacks of rice.

Illustration of compensation:

Compensation takes place when two persons in their own right become creditors of each other. In lay man’s term compensation means “kwets”.

A (debtor) binds himself to deliver to X, Y and Z (solidary creditor) the amount of one hundred fifty thousand pesos (150,000). However, X, one of the solidary creditors is indebted to A of the same amount.

Illustration of Confusion or Merger of Rights:

Confusion takes place when the characters of the creditor and debtor are merged in the same person.

A (debtor) binds himself to deliver to X, Y and Z (solidary creditor) the amount of one hundred fifty thousand pesos (150,000). X, one of the solidary creditors is indebted to M in the same amount for the order and delivery of two(2) units of motorcycle. M, in satisfaction of X’s debt assigns the credit to A. As result A becomes the debtor and the creditor.

Illustration of Remission or Condonation:

Condonation is the act of liberality by which the creditor renounces the enforcement of the obligation contracted in his favor.

A (debtor) binds himself to deliver to X, Y and Z (solidary creditor) the amount of one hundred fifty thousand pesos (150,000). X, one of the solidary creditor, upon knowing the bankruptcy of A, entered into an agreement to renounce his rights over the latter.

The aforementioned are prejudicial to the solidary co-creditors because the obligation of the debtor due to them are extinguished since under the principle of law a payment of debtor to one of the solidary creditors is payment to all solidary co-creditors. However, the solidary creditor who causes the extinguishing acts shall be liable to the others.

Article 1213. A solidary creditor cannot assign his rights without the consent of the others.

by: Janine Gumangol

Article 1214. The debtor may pay any one of the solid

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

by: Algy Riguer

Ang may pagkakautang ay maaring magbayad sa isa sa pinagsama-samang nagpapautang, ngunit kung may paniningil sa hukuman o sa labas ng hukuman ng isa sa kanila, ang pagbabayad ay dapat doon sa sumingil.

That in a solidary obligation any one of the solidary debtors may pay the entire obligation to any one of the solidary creditors.

This Article articulates an exception is that, the moment one creditor demands, any solidary debtor paying or debtors paying must pay only to the demanding creditor.

Payment to any of the solidary creditors.

The rule is that the debtor may pay any one of the solidary creditors. But when a demand, judicial or extra-judicial, has been made by one of them, to avoid confusion, as well as prejudice to the more diligent creditor, payment should be made to him; otherwise, the obligation will not be extinguished except insofar as the creditor-payee’s share is concerned in case the latter does not give to the other creditors their shares in the payment. The demand has the effect of terminating the mutual agency among the solidary creditors.

Example:

A,B,C,D are the solidary creditors representing the credit union in which E is a debtor. If one of them(creditors) or C made a demand on E in order to fulfilled the latter obligation, E can only made payment to C and that payment is sufficient to effect the extinguishment of obligation of E.

Article 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 provisions of Article 1219.

The creditor who may have executed any of these acts, as well as he who collects the debt, shall be liable to the others for the share in the obligation corresponding to them.

by: Rose Ann Villanueva

Ang pagwawakas, kabayaran, pagkalito, o pagpapataw ng utang, na ginawa ng alinman sa mga solidaryong nagpapautang o sa alinman sa mga solidaryong may utang, ay ipawawalang bisa ang obligasyon, nang walang pagkiling sa mga probisyon ng Artikulo 1219.

• Compensation- takes place when two persons are both principal creditors and debtors to each other in their own rights.
• total compensation- happens when the two obligations of creditor and debtor to each other are both the same in kind and value
• partial compensation- happens when the obligation of one is bigger than the other
• Confusion or merger – happens when the personalities of the creditor and debtor are mixed in only one person
• Remission- gratuitous act of erasing the debt

• There must be two debts
• The parties in the two obligations are debtor and creditor in both obligations
• The parties are bound principally as debtor and creditor in both obligations
• The two obligations are both due and demandable
• There is no lien or attachment on any of the obligations
• There is no third party to be prejudiced
• The objects are of the same kind or quality

Article 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.

by: Johannes Aquino

Maaring habulin ng kreditor ang sino man sa mga solidary debtors, ilang sa kanila or kahit lahat sila ng sabay sabay. Ang paghabol sa isa ay hindi hadlang sa paghabol sa iba hanggat hindi nasasakatuparan ang lahat ng obligasyon.

Right of creditor to proceed against any solidary debtor.

The above provision is not applicable to a joint obligation. It reiterates the rule that in a 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.

(1) Since the liability is solidary, the other, solidary debtors are not indispensable parties in a suit filed by the creditor.

(2) The bringing of an action against a solidary debtor to enforce the payment of the obligation is not inconsistent with and does not preclude the bringing of another to compel the others to fulfill their obligations.

(3) In case of death of one of the solidary debtors, the creditor may proceed against the estate of the deceased solidary debtor alone or against any or all of the surviving solidary debtors whose liability is independent of and separate from the deceased debtor, instead of instituting a proceeding for the settlement of the estate of the deceased debtor wherein his claim could be filed.

Illustration:

Becky, Princess Sarah, Kris and Bambi are solidarily liable to pay Boy Abundant P1 million pesos.

Boy Abundant may choose to proceed against any one of Becky, Princess Sarah, Kris and Bambi for the collection of P1 million. He may also proceed against any one of them simultaneously with the other, or against all of them at the same time. His action against one will not bar him proceed against the other parties until he fully recovers his P1 million.

Article 1217. Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditor may choose which offer to accept.

He who made the payment may claim from his co-debtors only the share which corresponds to each, with the interest for the payment already made. If the payment is made before the debt is due, no interest for the intervening period may be demanded.

When one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation, such share shall be borne by all his co-debtors, in proportion to the debt of each.

by: Jayson Calventas

Ang pagbabayad na ginawa ng isa sa mga solidary debtor ay magwawakas ng obligasyon. Kung ang dalawa o higit pang mga solidary debtor ay mag-alok upang magbayad, ang nagpapautang ay maaaring pumili kung aling alok ang tatanggapin. Siya na nagbayad ay maaari lamang humingi mula sa mga kapwa niyang nangutang ng bahaging tumutugma sa bawat isa, kasama ang interes sa kabayarang nabigay. Kung ang kabayaran ay binigay bago ang takdang araw ng pagbabayad-utang, walang interes na maaaring mahingi para sa panahong lumipas.

Kapag ang isa sa mga solidary debtor, dahil sa kawalan niya ng kakayahang magbayad-utang, ay hindi makapagbabalik ng kanyang bahagi sa nagbayad ng utang, ang kanyang bahagi ay dapat batahin ng lahat ng kapwa niya nangutang, sang-ayon sa bahagi ng utang ng bawat isa.

• When one of the debtors/obligors pays the whole debt, the other co-debtors shall reimburse the debtor who paid the debt, with interest
• In case of INSOLVENCY (cannot reimburse his share of the obligation) of one of the debtors/obligors, the obligation shall borne by the able co-debtors in accordance to his/her debt

Article 1218. Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal.

by: Jeirome Domingo

A and B are solidary debtors of C to the amount of P1,000,000.

The debt prescribed. But A voluntarily paid C, nevertheless, because A felt morally obliged to so pay.

(a) May A recover from C what he has paid?

(b) May A get any reimbursement from B?

ANSWER

(a) A cannot recover from C what he has paid because it was voluntarily given after A knew of the prescription of the debt. The law says, “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 service he has rendered.’’ (Art. 1424, Civil Code). (NOTE: If payment had been made by A to C, without A knowing that the debt had prescribed, A can recover from C on the basis of solutio indebiti.)

(b) A cannot get any reimbursement from B because A paid the debt after it had prescribed. The law says, “Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal.” (Art. 1218, Civil Code).

(2) Effect of Payment of an Illegal Obligation

A and B are solidarily bound to give C some drugs worth P1,000,000. Later, the law prohibits the transaction of said drugs, and declares the drugs to be outside the commerce of man. Knowing this, A nevertheless delivers the drugs to C. May A now get reimbursement from B?

ANSWER

No, A cannot get any reimbursement from B because A made the payment after the obligation had become illegal.

Article 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.

by: Johannes Aquino

Ang pagpapatawad ng kreditor sa bahagi ng isa sa mga solidary debtors ay hindi magpapalawang bisa sa responsibilidad ng pinatawad sa kanyang mga kapwa debtors kung ang obligasyon ay naisakatuparan na ng ibang mga debtors bago pa man ang pagpapatawad.

If payment is made first, the remission or waiver 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.

The purpose of the article is to forestall fraud whereby the debt having been paid, the creditor, who does not stand to suffer any loss or damage, remits the share of a particular debtor. The article also secures equality and justice to the paying debtor inasmuch as the payment benefits his co-debtors.

Illustration:

Mani and Jenki Fakeyaw are liable in solidum to Sabit Singson in the amount of P1 million. Sabit Singson remitted Mani’s share. Subsequent payment by Jenki of P1 million to Sabit Singson will not entitle her to reimbursement from Mani since the remission extinguished the obligation with respect to Mani’s share.

However, Jenki can demand the return of P0.5 million from Sabit Singson under the principle of solutio indebiti.

If payment by Jenki was made before the remission, Mani is still liable to Jenki because the remission is without effect, the obligation having been extinguished already by the payment.

Article 1220. The remission of the whole obligation, obtained by one of the solidary debtors, does not entitle him to reimbursement from his co-debtors.

by: Kristia Capio

Artikulo 1220. Ang pagpapatawad sa buong pagkakautang ay nakuha sa pamamagitan ng isa sa magkakasamang mangungutang wala siyang karapatan na manghingi mula sa kapwa niyang mangungutang.

There is nothing to be reimbursed because he did not spend any money, the remission being a gratuitous act. 

Remission, it must be borne in mind, is essentially gratuitous. Note that this Article applies only when the whole obligation is remitted.

A and B are solidary debtors of C to the amount of P1,000,000. C remitted the whole obligation when A offered to pay. A here cannot get any reimbursement from B since after all, A did not pay anything to C. To allow the contrary would be to induce fraud and to countenance partiality.

Article 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 a 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.

by: Bryan Glenn Fabiaña

If there was fault on the part of any of them, all shall be responsible to the creditor for the price and the payment of damages and interest without prejudice to their action against the guilty or negligent debtor.

If through a fortuitous event the thing is lost or the performance has become impossible after one of the solidary debtors has incurred in delay through the judicial demand upon him by the creditor, the provisions of the preceding paragraph shall apply.

Comment:

In case of loss of the thing or the impossibility of the prestation, the following rules apply:

1.) If there is no fault on the part of the solidary debtors, the obligation is extinguished;

2.) If there is fault on the part of anyone of them, all will be liable without prejudice to their action against the guilty solidary debtor;

3.) If the loss or impossibility of performance is due to fortuitous event, there is no liability unless there is delay. In which case, all will be liable without prejudice to their right to go against the guilty or negligent solidary debtor.

Article 1222. A solidary debtor may, in actions filed by the creditor, avail himself of all defenses which are derived from the nature of the obligation and of those which are personal to him, or pertain to his own share. With respect to those which personally belong to the others, he may avail himself thereof only as regards that part of the debt for which the latter are responsible.

by: Janine Gumangol

1. Those derived from the nature of obligation (complete defense)
2. lack of consideration or cause
3. absolute simulation (as when the contract is totally fictitious)
4. illegal consideration
5. extinguishment of the obligation (when the whole debt has been paid, remitted, or has prescribed)
6. non-fulfillment of the suspensive condition
7. statue of frauds
8. when ALL the debtors are incapacitated to give consent (unemancipated minors, insane, idiots, persons under a hypnotic spell)
9. when there are vices of consent (vitiated) on the part of ALL the debtors (when all were forced or intimidated or unduly influenced or were led into error)
10. Those personal to the debtor used (complete defense). It is partial defense if there is non-fulfillment yet of a condition or the non-arrival yet of the term, in which the debtor will still be liable except for his own share in the meantime.

COMPLETE DEFENSE-vitiated consent, incapacity to give consent (minor)

PARTIAL DEFENSE-non-fulfillment of condition imposed regarding his share, unless provided otherwise

1. Those personal to the others same as (2)

Example: Abby, Ben, Carlo are solidarily indebted to Xianne for the selling of a property. If Abby, Ben, Carlo are sued, none can be held liable. This is a complete defense.

Abby, Ben, Carlo are solidarily indebted to Xianne for Php 3 million but Abby’s consent had been obtained by intimidation.

1. If Xianne sues Abby, how much Abby will be liable for?

Answer: Nothing, for as to him, this is a complete defense. He would not have ben involved at all, had there been n intimidation.

1. If Xianne sues Ben, how much Ben wil be liable for?

Answer: For the whole Php 3 million minus Abby’s share (Php 1 million) if Ben puts up Abby’s vitiated consent as a defense. Having only a partial defense, Ben can still be liable for Php 2 million.

The remaining debtor among solidary debtors shall shoulder the payment of their obligation if the co-debtors in solidary obligation had used their complete defense.