Article 1207

The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not imply that each one of the former has a right to demand, or that each one of the latter is bound to render, entire compliance with the prestation. There is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. (1137a)

Ang pagpayag ng dalawa o mahigit pang nagpapautang o dalawa o mahigit pang mga umutang sa iisa at parehas na pananagutan ay hindi nangangahulugan na ang  bawat isa sa mga nagpautang ay  may karapatan maningil o ang bawat isa sa mga may utang ay gampanan ang buong pagsasakatuparan ng kabayaran. Mayroon lamang magkakasamang pananagutan kung ang obligasyon ay nagsasaad nito o hinihiling ng batas o ng lagay ng obligasyon ang pagkakabuklod.

Discussions:

Classification of Obligation  (Accdg. To # of parties)

1. Individual Obligation – there is only one debtor and one creditor in a contract

2. Collective Obligation – there are two or more debtor and two or more creditors

Kinds of Collective Obligations

1. Joint Obligation– where the whole obligation is to be paid or fulfilled proportionately by the different debtors and demanded proportionately by the different creditors. This is the presumption in all collective obligation unless solidarity is expressly stated.

2. Solidary Obligation– where each one of the debtors is bound render, and/or each creditor has the right to demand from any of the debtors, the entire compliance with the prestation.

*Passive/solidarity on the part of the debtor

*Active/solidarity on the part of the creditor

Consequences of  Joint Obligation

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

[ill. Tin,Tina,Mau owed Jun 900K. There are 3 debts and 1 credit, In the absence of any agreement, the liability of Tin, Tina & Mau is only 300K]

2.Each creditor, if there several, is entitled to a proportionate part of the credit.

[ill. Tin, Tina, Mau lend Jun 900K. 3 debts and 1 credit.  Each of the creditor can collect 300K each.]

3.The demand made by one creditor upon one debtor, produces the effects of default only as between them, but not with respect to the others.

4.The interruption of precription caused by the demand by one creditor upon one debtor , will not benefit the the co-creditors; neither, will that demand interrupt the prescription of the obligation as to the other debtor.

5.The insolvency of a debtor will not increase the liability of his co-debtors. Neither , will it allow a creditor to demand anything from the co-creditors.

6.The vices of each obligation emanating from the personal defect of a particular debtor or creditor will not affect the obligation or rights of the others.

Consequences of  Solidary Obligation

1. Passive Solidarity- one of the several debtors can be made liable for the payment or the performance of the entire obligation. (full payment by any of the debtor extinguishes the obligation)
2. Active Solidarity- one of the solidary creditors can demand the payment or performance of the entire obligation from the debtor or any of the debtors. (There is mutual representation w/ power to exercise the rights of others in the same manner as their own rights)

Solidary liability cannot be presumed, the law recognizes the existence (1) When the obligation itself expressly provides for solidarity, for the burden s now assumed voluntarily by the debtor/s who are supposed to take care of their own concerns and affairs (Conventional Solidarity); (2)When the law expressly provides for solidarity for which the law has its own legal reason for the imposition of solidarity (Legal Solidarity); (3)When the nature of the obligation requires solidarity (Real Solidarity)

Some Legal Solidarity found in Civil Code

  Art 927. If two or more heirs take possession of the estate, they shall be solidary liable of the loss or destruction of a thing devised or bequeathed , even though only one of them should have been negligent.

  Art 1824. All partners are liable solidarily with the partnership for everything chargeable to the partnership under Art 1822 & 1823.

  Art 1911. Even when the agent hs exceeded his authority, the principal is solidary liable with the agent if the former allowed the latter to act as though he full powers.

  Art. 2146. If the officious manager delegates to another person all or some of his duties, he shall be liable for the acts of the delegate, without prejudice to the direct obligation of the latter toward the owner of the business.

  The responsibility of two or more officious managers shall be solidary, unless the management was assumed to save the thing or business from emminent danger.

Other Names or Statements Equivalent to Solidarity

1. Mancomunada Solidaria
2. De mancomun e insolidum
3. In solidum
4. Juntos or Separadamente
5. Jointly or severally
6. Individually & Collectively
7. Each to pay the whole value
8. “I promise to pay” signed by two or more debtors.

Case Illustration: Salvador P. Escaño and Mario M. Silos vs. Rafael Ortigas Jr.

 

Article 1208

If from the law, or the nature or the wording of the obligations to which of the preceding article refers the contrary does not appear, the credit or debt shall be presumed to be divided into as many equal 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.

Kung galling sa batas, o ang katangian o the mga salita ng obligasyon kung saan ang sinusundan na artikulo ay hindi sumasang-ayon ay hindi Makita, ang utang ay maaaring magpalagay na ito ay ibahagi sa mas maring pantay na distribusyon para doon sa nagpautang at nangutang, ang mga utang ay may pagkakakilanlan sa bawat isa, at sumasailalim sa Saligang Batas na syang namamahala para sa katakut-takot na demanda.

Compainia General de Tabacos v. Obed

Facts: A mother and her son borrowed money. Nothing was said in the contract regarding solidary liability. But in the brief presented by the lawyer for mother and son, the two debtors unwittingly said they were solidarily liable.

Issue: Does the statement in the brief of the lawyer convert the joint obligation into a solidary one?

Held: No. The statement in the brief is immaterial. What must prevail is the contact in questions, and since nothing is mentioned therein relating to solidarity, the obligation is only joint.

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. (1139)

Kung ang paghahati ay imposible, ang karapatan ng mga nagpautang ay maaaring mapasama sa pamamagitan lamang ng kanilang kolektibong kagagawan, at ang utang ay makukuha sa pamamagitan lamang ng paglilitis laban sa mga nangutang.  Kung ang isa sa mga nangutang ay hindi makakapagbayad, ang kanyang mga kasama ay walang pananagutan sa kanyang bahagi.

Discussion:

Article 1209 applies to joint indivisible obligation because the prestation or object is not susceptible of division, and solidarity is not provided.

According to Manresa, for joint indivisible obligation:

Debtors – the fulfillment of obligation requires the concurrence of ALL the debtors (each for his part)

Creditors – there has to be a collective action for acts which are deemed prejudicial to the rights of the creditors.

In case of breach of a joint indivisible obligation:

When there is plurality of debtors – compliance can be enforced by proceeding against ALL of the debtors. If one of the debtors fails to perform, the obligation can no longer be fulfilled because the prestation or object is indivisible. In indivisible prestation, division is not possible.

If such is the case, the obligation is then converted to an indemnity for damages.  In paying for the indemnity, those debtors who are ready to fulfill their obligation should not contribute beyond his or her share in the prestation or object.  The debtor who refused ot failed to comply shall shoulder all the damages suffered by the creditor/s due to his non-performance.

Suppose the other debtors also suffered damages when the prestation was converted into indemnity for damages, they may also recover damages from the erring debtor.

If one of the debtors become insolvent, the rest of the debtors shall not be liable for his share.

When there is plurality of creditors (but only one debtor) –  the obligation can be performed only by the delivery of the thing to all the creditors jointly.  The debtor must not deliver to just one unless that particular person has been authorize by all the creditors to receive the delivery.  Otherwise, the debtor may be liable for damages due to non-performance of the obligation in consideratino of the other creditors.

On the other hand, if only one creditor or some, and not all, are making the demand, the debtor can refuse to make the delivery.  Also, if one or some creditors refuse to accept the delivery, the debtor may resort to tender of payment which is to be followed by proper consignation of the thing, to avoid any default.