Commerce vs. Pua Te Ching, 16 Phil. 406.) From the foregoing it is safe to deduce that "in solidum" is translated into "joint" in English and “mancomunada ó a prorrata" is equivalent to "several."

By Comparing the effects of the word "in solidum of the Spanish law and the words "joint" and "joint and several" of the American law Mr. Justice Willard is justified in criticizing such erroneous translation. In a contract of “in solidum" all or any one of the debtors may be sued, which is also true of a "joint and several obligation" of the American law. In a "joint contract" in American law all the debtors must be joined to make the suit effective. (See Bishop on Contracts, Section 870, pages 359-360; Bangor Bank vs. Treat, 19 Am. Dec. 210; Tuckerman vs. Newhall, 17 Mass. 581, 583; American Bank vs. Doolittle, 14 Pick. 123, 126; Rowley vs. Stoddard, 7 Johns. 207, 210.)

Because of the anomaly above referred to, the Supreme Court of the Philippine Islands has recently made an apparent change, at least according to the opinion of the writer. In the case of Sherruf vs. The Tayabas Land Co., XVI Off. Gaz. 526, it was held: "In this jurisdiction at least, the word 'jointly' when used by itself in a contract or a judgment rendered in English, is equivalent to the word mancomunadamente, and in order to convey the idea expressed in the Spanish term solidariamente (in solidum), the words 'jointly and severally' or 'solidary' or words of like effect must be used. A contract or a judgment based thereon, which fails to set forth that a particular obligation is a 'joint and several' (solidary) obligation must be taken to have in contemplation a 'joint' (mancomunada) and not a 'joint and several' (solidary) obligation."

“A joint obligation in this jurisdiction binds the parties thereto only for the proportion of the debt, while in solidary obligation, on the contrary, binds each of the obligators for the whole debt." (This is in accordance with the law of Louisiana. Groves vs. Sentell, 14 Sup. Ct. 898, 901; 153 U. S. 465; 38 L. Ed. 785; See also De Leon vs. Nepomuceno et al., XV Off. Gaz. 1821; Luna vs. Arcinas, XIV Off. Gaz. 855, 857.) In the subsequent pages therefore whenever the word "joint" and "joint and several” are used they mean “mancomunada” and “solidaria” respectively.

The word obligation comes from the Latin term "obligare" meaning to bind.

B. Definitions

1. Roman Law. -Obligation est juris vinculum quo necesitate adstringimur alicujus solvendas rei, secundum nostrae civitatis jura" or "An obligation is a tie of law which binds us, according to the rules of our civil law, to render something." (Institutes of Justinian, Book III, Tit. XIII; Marco Tulio, page 385.)

2. Partidas.-There are civil and natural obligations. Civil obligation is created by law; Natural is that created by nature. "La primera es cuando el que la faze finca obligado por ella, de guisa que, maguer el non la quiera cumplir, que lo puedan apremiar por ella e fazergela cumplir. E a esta obligacion a tal llaman en latin obligacion civil e natural, que quiere tanto decir como ligamento que es fecho segun ley e segun natura. La segunda manera de obligacion es natural solamente. E esta de tal manera, que el ome que la faze es tenido de tal cumplir naturalmente, como quier que non le pueden apremiar en juyzio que la cumpla." King Alfonso said that "it is a tie based upon the law or nature." From all these definitions we car see that in all kinds of obligations there exists a relation between two persons-on、 having a right and another who must execute an obligation. In common parlance they are the creditor and debtor."

The words segun ley o segun natura give the basis of the classification of obligations into natural, civil and mixed. (Marcc Tulio, page 385.)

3. Sanchez Roman.-"The juridical necessity to comply with a prestation." (IV Sanchez Roman, page 5.) An obligation may be said to be única individual or simple when there is only one person who has the character of debtor and another who is the creditor. An obligation is multiple, collective or compound when there are various creditors and debtors or both. (IV Sanchez Roman, page 43.)

4. Civil Code. All obligations consist in giving, doing or not doing something. (Art. 1088, Civil Code.) Different authors however have different ways of defining obligation. Some say that it is the relation between a creditor and a debtor which rests on the prestation, giving the one right to compel the other to give. This relation therefore is a tie which strengthens the right of a person to urge another which may also be termed "rigorismo civil," thus accentuating the duty of the one obliged to give as a necessity in the compliment of an obligation which may be judicially enforced against the debtor. (8 Manresa, page 11.)

All these discussions however are merely views of one thing as seen from different angles. They however agree that in an obligation there must be (1) a prestation to be complied with; (2) the right of the creditor to demand and (3) the duty of the debtor to fulfill. Obligation according to Roman Law has the following sources (1) Excontractu; (2) Quasi ex-contractu; (3) Ex-delicto; (4) Quasi ex-delicto c which enumeration of the Civil Code adds "Law" as another source.

Though it is not the aim of the author to give an exhaustive dissertation of the subject yet he deems it advisable to give a brief analysis of each source of obligation which will be taken in the order given by the Civil Code. His aim is to give a basis or foundation for the discussion of the main subject which is treated more intensively.

Obligation arising from law are not presumed. This is because all those prescribed by law are not common cases and what is not ordinary is never presumed. Those obligations therefor founded on law must be definite and must not leave any doubt as to their tenor.

Obligations arising from crimes or misdemeanors shall be controlled by the provisions of the Penal Code. (Art. 1092, Civil Code.)

Obligation arising from contract has the force of law between the contracting parties and must be complied with according to the tenor of the contract. (Art. 1091, Civil Code; Pelayo vs. Laurel et al., 12 Phil. 453, 535.) Contracts shall only be effectual between the parties by whom they are executed and their heirs, except with respect to the latter, in the cases where the rights and obligations originating from the contract are not transmissible either by their nature, or by act or by provision of law. Parties are given the right to make any contract with the only limitations that it must not be in contravention to any law, immoral or subverting public order. The Supreme Court of these Islands in the case of Batarra vs. Marcos, 7 Phil. 156, laid down the following doctrine: "A promise of marriage based upon carnal connection is founded upon an unlawful consideration and no action can be maintained by the woman against the man therefor where the woman is over the age of eighteen and hence the act does not constitute the crime of estupro. (See also Articles 1305, 1306 of the Civil Code.)

With respect to Quasi ex-contractu Article 1887 of the Civil Code provides; “Quasi contracts” are purely licit or voluntary acts by which the author thereof becomes obligated with respect to a third person and sometimes, by which there results a reciprocal obligation between the parties concerned. This will take place where any one takes the agency or administration of the business of another without the authorization of the latter who is obliged to continue managing the same until the end, or he must notify the interested person so that the latter may come and substitute him in the management should he be in a condition to do so for himself. (Art. 1888, Civil Code.) This is equivalent to the negotiorum gestio. The Supreme Court in Smith et al., vs. Lopez, 5 Phil. 78, where the plaintiff or proprietor of the Philippine Gas and Light Co. performed certain installations of water system in the house of the defendant under the contract entered into between the plaintiff and the father of the defendant as administrator of the property, said that, there was a quasi contract which created a reciprocal obligation between the plaintiff and the defendant for the reason that the defendant did not object to the work, so it must be presumed that they approved and ratified the unauthorized contract of the father with the contractor. When a thing through error has been delivered to a third person who has no right to claim it, there arises an obligation on the part of the receiver to restore the same. (Art. 1895, Civil Code.) The principle being that no one must enrich himself at the expense of another.

Obligations arising from ex delicto and ex maleficio are governed by the Penal Code. Every person criminally liable for a felony or misdemeanor is also civilly liable. (Art. 17, Penal Code.) Civil liability consists in three things (1) restitution; (2) reparation; and (3) indemnification for consequential damages. (Art. 119,

Penal Code.) The court is given the discretion of determining the amount, taking into account the price of the thing whenever possible, and its special value to the injured party. (Art. 121, Penal Code.) The indemnification for losses shall include not those caused to the injured party but also those sufferred by his family or by a third person by reason of the crime. (See Arts. 121 and 122, Penal Code.) The obligation however to make restitution or reparation for damages and indemnification for losses or consequential damages devolves upon the heirs of the person liable. (Art. 123, Penal Code.) Likewise the right to demand restriction, reparation and indeinnification descends to the heirs of the person injured. (Art. 123:2, Penal Code.)

The last source is the quasi ex delicto or quasi ex maleficio. Article 1902, Civil Code provides "A person who by an act or omission causes damages to another where there is fault or negligence shall be obliged to repair the damage so done." This obligation is demandable not only for the personal acts and omissions but also for those of the persons for whom they should be responsible. Thus the father or in his death or incapacity, the mother, is liable for the damages caused by the minors who live with thein; guardians or directors for the damages caused by the minors or incapacitated persons under their authority and live with them; owners or directors of an establishment or enterprise are equally liable for damages caused by their employees in the service of the branch in which the latter may be employed or on account of their duties; the State is liable when it acts through a special agent. vs. Government of the Philippine Islands, 14 Off. Gaz. 1077.)

II. ELEMENTS

(See Merritt

Marco Tulio gives three essential elements in all kinds of obligations: (1) Cause or consideration; (2) Contracting parties; (3) Subject matter. (Marco Tulio, page 385.) Giorgi however differs from him and gives five requisites. Four being intrinsic and the last being extrinsic. They are (1) judicial tie or right; (2) active subject; (3) passive subject of the right; (4) a fact or prestation or service constituting the object of the obligation; and the extrinsic element is (5) the form of the obligation. (Giorgi Teoria de Obligaciones, page 13.)

Having been unwillingly detained by the somewhat lengthy discussion of the sources of contract the author will now proceed in the development of his main subject--Joint (mancomunada) and Joint and Several (solidaria) Obligations.

CHAPTER I

I. JOINT (MANCOMUNADA)

A. Concept

1. Sanchez Roman.--(a) Juridical concept of "Mancomunada."-The juridical meaning of the word "mancomunada" is the right to oblige in common. The right created belonging to one person of obliging several persons or vice versa concerning one obligation, constitute the common obligation. (IV Sanchez Ronan,

page 44.) The word “mancomunidad" is realized by two different modes which are species of this idea,-both necessitate the plurality of subjects but under different footing. One party are creditors and the other the debtors. In order that the creditors may have the right to compel the other party, the latter, debtors must have their respective obligations in whole or in part in the common exigible prestation. When the right or obligation is imputable by shares which are divisible into as many creditors or debtors the mancomunidad and the right to the obligation is termed mancomunidad simple or a pro rata. (IV Sanchez Roman, page 44.) But on the contrary when the right or obligation is imputable or attributed in whole, the mancomunidad and the right to the obligation which is produced shall be termed mancomunidad solidaria. (IV Sanchez Roman, page 44.)

"Mancomunidad" does not convey anything other than the generic idea of association, conjunction or agreement of many to have a right in one obligation; but when it is followed by the term a pro rata it shall be understood that the obligation is demandable by shares and when mancomunidad conveys the idea of joint and several obligation (solidariamente) it is followed by "e cada uno por todo," or any other equivalent. (IV Sanchez Roman, page 45.)

2. Manresa.-Other codes like the Civil Code in 1851 confuse the idea of solidarity and mancomunada for they use "solidary obligation" and "mancomunada" interchangeably as conveying the same meaning.

Our code however discarding all the qualifying words of "solidaria" and "pro rata," uses mancomunada for_joint obligation and solidaria for joint and several. (8 Manresa, 184; IV Sanchez Roman, page 46.)

B. Kinds

According to Sanchez Roman simple mancomunidad can be divided into active, passive and mixed according to the existing relations between the creditors, or debtors or of both. There is simple mancomunidad or pro rata between the creditors when various persons have the equal rights or by shares in the fulfillment of the same obligation, the effect of which if complied with by one or various debtors shall be divided between the creditors. This presupposes a plurality of creditors in the same obligation. (IV Sanchez Roman, page 47.)

C. Presumption

In favor of Joint (Mancomunada) Obligation.-The Novísima Recopilación in its Book X, Tit. I, Law 10 in contrast with Law 4, Tit. 18, Book III of Fuero Real (which presumes solidary obligation) provides that it will not be understood that a contract is solidary if it is not expressly stated that each one is obliged in solidum. (8 Manresa, page 186.) Our Civil Code which is in consonance with the Novísima Recopilación fs also in favor of joint obligation for Article 1137 says "the concurrence of two or more creditors, or of two or more debtors, in a single