A COMPARATIVE STUDY OF JOINT (MANCOMUNA- BY VALENTIN REYES Y TANCHANCO, B. A., LL.B. (Awarded the Lawyers Co-operative Publishing Co. prize of United States Supreme Court Digest, Extra Annotated, 7 volumes, for the best thesis presented for Graduation from the College of Law, University of the Philippines, during the school year 1918-1919.) (Continued from September Number) I. PASSIVE SOLIDARITY A. Definition "Is a tie (vínculo) between various debtors, by virtue of which each one of the debtors becomes reciprocally obliged to the payment, for the greater security of the credit and to facilitate the creditor to recover". (I Giorgi, Teoría de las Obligaciones, page 115.) B. Requisites In any case of passive solidarity the following elements are generally present: 1. Plurality of debtors; 2. Unity of prestation; 3. Will of man or legal disposition, direct to constitute the solidarity. Now with respect to the first element it is clear, because in order to have a passive solidarity two or more debtors are indispensable. Regarding the second element it is the same as in the plurality of creditors because if each debtor would make different and distinct prestations, then we shall not have one and single obligation but various or numerous which will then be contrary to the word passive solidarity. The third element or requisite may be shown by means of testament or by contract. Solidarity by testament takes place when a testator imposes a joint and several (solidaria) obligation to various heirs to pay a legatee. If it is true that there is no article which confers expressly to the testator such power or faculty, yet there is neither an article or precept which explicitly or implicitly denies him such authority. (I Giorgi, Teoría de las Obligaciones, pages 155-116.) The 1 JOINT AND JOINT AND SEVERAL OBLIGATIONS 133 73 solidarity between the debtors may be also contractual, but it requires the explicit consent of all the contracting parties. The solidarity or joint and several obligation according to the provision of article 1137 of the Civil Code can not be presumed but it must be expressly stipulated. (I Giorgi, Teoría de las Obligaciones, page 117.) C. Similarities and Distinctions Between Passive Solidarity and Suretyship 1. Similarities.-In passive solidarity, although there can be perceived a sort of mutual agency, nevertheless, in so far as payment is concerned, guaranty is a characteristic which looms larger than mere mandatum, Therefore from such similari ties we can deduce the following: (a) A joint and several debtor, like a surety, stands for some other person; (b) Both debtor and surety, after payment, may require that they be reimbursed. (8 Manresa, page 212.) 2. Distinctions.-(a) A joint and several debtor is liable not only for his codebtor's obligation, but also for his own. He is at once a principal and a surety; (b) A joint and several debtor's responsibility for his co-debtor is primary, not secondary. As a consequence of all this a joint and several debtor does not have the benefit of liquidating first the estate of his co-debtor for paying his debts, nor has he the right to divide the debts proportionately when there are three or more of them as in the case of sureties, before the debt may be demanded against him. (8 Manresa, pages 212-213.) D. Right of a Solidary Debtor to Pay any one of the Solidary Creditor Article 1142 of the Civil Code provides: "A debtor may pay the debt to any one of the joint and several creditors, but when it has been judicially demanded by any one of them, he must pay to this particular one." (See also Bishop on Contracts, Sec. 875.) 1. Stipulations to Contrary are Void.-This precept has a certain prohibitive sense as far as it refers to joint and several (solidaria) obligations, in that the obligation will not have such character, with respect to all the subjects if there is an agreement to the contrary by virtue of which the right of the debtor will be limited. In reducing the election of payment to some of the solidary creditors, and denying to either of the creditors the right to perceive or claim the total payment, there will be missing the two essential characteristics of the joint and several (solidaria) obligation with respect to the excluded creditor. His direct relation with the debtor or debtors, and the authority to demand and ask does not pertain to him exclusively but also to his co-creditors. (8 Manresa, page 204.) II. EXCEPTIONS (a) Judicial Demand.—Article 1142, Civil Code is clear in providing that the debtor can pay the debt to any one of the joint and several creditors but if it has been judicially demanded by any one of them, to him must be paid. (IV Sanchez Román, page 52; See also Art. 1142, Civil Code.) (b) Extrajudicial Demand.—According to the provision of the article 1143 of the Civil Code the demand may be made judicially or extrajudicially, and this is in accordance with the famous doctrine denominated with the word poursintes used in article 1198 of the Napoleon Code, which gives also effect to the extrajudicial demand. (I Giorgi, Teoría de las Obligaciones, page 100.) But according to the terms of this article, the extrajudicial demand made by one creditor is not enough to oblige the debtor to pay him, since the debtor preserves his right of election while it is not judicially demanded. (8 Manresa, page 203.) 1. Effect of Non Payment.—If it is true that the extrajudicial demand of the debt by one of the creditors is not enough to deprive the debtor of his right to elect, it nevertheless determines the constitution in default (mora) for the benefit of all the creditors, consisting of the interests due and indemnities to any damage caused by such default. In such case then though the payment of principal obligation is licit, the obligation to indemnify from the time of the demand until payment is made arises; the effect of which can be asked as a joint and several obligation after the demand of the creditor to whom it was not paid. (8 Manresa, page 203; Read also Arts. 1110 and 1141 of the Civil Code in connection with Art. 1142.) Default or mora is incurred by those obliged to deliver certain thing from the moment the creditor demands judicially or extrajudicially the fulfillment of the obligation. However the demand of the creditor is not necessary in order to constitute default in the following cases; 1. When the obligation or the law so expressly declares; 2. When by its nature and circumstances it appears that the designation of the time in which the debtor has to deliver the thing or service to be made was determinate cause in establishing the obligation. (Marco Tulio, page 387.) An application of the second exception in the writer's opinion is when A contracted to deliver B one dozen bags of confetti for the coming carnival. If A does not deliver and the carnival has terminated, he is in default though no demand was made it being obvious that the object of B in contracting for such confetti was for use in the carnival. Indemnification must be governed by the following; (a) The indemnification of damages and injuries comprises not only the amount of the loss suffered, but also the profit which ought to have been obtained by the creditor. The expression amount (valor) of the loss suffered and of the profit not obtained correspond to the words damages and injuries; damage being the amount of the loss and the injury the amount or portion of the profit; (b) The damages and injuries from which the debtor in good faith answers, are those foreseen or might have been foreseen at the time of constitution of the obligation and being the necessary consequence of his failure to comply with. In case of fault the debtor will answer for all the damages and injuries caused by his fault in fulfilling the obligation; (c) If the payment consists of cer tain amount of money and the debtor is in mora, the indemnification of damages and injuries in the absence of the agreement to the contrary will be the legal interest which is six (6) per cent; (d) Those interests due will earn legal interest from the moment they are demanded judicially even though the obligation is silent on this point. In commercial contracts they must be governed by the provision of the Code of Commerce and those of pawn-shop by special laws or rules. (Marco Tulio, page 390; See also Arts. 1106, paragraphs 1 and 2; 1108 and 1109.) 2. Payment Made to a Third Person.—The doctrine of validity of circumstantial payment made to a third person provided for in article 1163, par. 2, has certain special application with regard to joint and several (solidaria) obligation: Not that the payment made to one of the creditors can be considered with respect to the others as payment to a third person, but there is the possibility of verifying a payment which though made to a person entirely foreign to the obligation, may nevertheless redound to the benefit of one of the joint and several (solidaria) creditors, in which case and in so far as it has produced such effect, such payment will be valid and effective with respect to all the creditors. (8 Manresa, pages 204-205.) The following is the proper application. Suppose A, B and C are solidary creditors of D for P500.00. If X living in the same town as D has a credit against B for P700.00. Then if D paid to X the P500.00 it is as good as paid to any one or all of the joint and several creditors. 3. Rule as to Mixed Solidarity.-But in case of mixed solidarity, it is beyond doubt that a judicial demand made to a debtor prevents the latter from paying to another creditor different from the demanding one. This prohibition does not extend in the case where a personal demand is made to any one of the other debtors, who can licitly pay to other not demanding creditor even after the demand against his co-debtor has been made. In case two or more conjointly demand, they can not prosecute distinct actions simultaneously, and in that case the payment shall be made to the creditor who first made the demand. (8 Manresa, page 204.) III. PAYMENT MADE BY ONE OF THE JOINT AND SEVERAL DEBTORS 1. Extinguish the Obligation.—A payment made by any one of the solidary debtors extinguishes the obligation. A person who has made the payment can only claim from his co-debtors shares pertaining to each one with the interest on the amount advanced. The failure to comply with the obligation, on account of the insolvency of a solidary debtor, shall be made good by his co-debtors in proportion to the debt of each of them. (Art. 1145, Civil Code.) (a) On Partial Payment.-In speaking about the extinction of the obligation, it is clear that the law refers to total payment. But partial payment may take place either because the demand is limited to that amount or because the debtor has no sufficient means. In this case the only question is as to the imputation of payment as indicated in article 1143; a problem which has its consequences for the subsequent demand for reimbursement of the person who paid from the co-debtors for it is not determined whether such payment is applied to his share of the debt alone or against the whole debt so that each debtor has an equal or unequal proportion, according to the division of the obligations. There being no imputation neither in the reclamation nor at the time of making the payment, it must be governed by the general rules of the Code, in the sense that each debtor can pay the obligation as a whole and in the term which any one could comply with, but those which are strictly personal, the creditor according to article 1161 of the Civil Code can not be compelled to consider as satisfied the execution of the act by a person distinct from that especially obliged. And in such cases the obligation of the other debtors with respect to prestations strictly personal is that of the surety as it is provided expressly by the French Code in its article 1216. But with respect to our Code the responsibility of the other debtors in the hyphotesis of non-compliance of such obligation, shall be regulated by the provision of article 1147 of the Civil Code. (8 Manresa, pages 214-215.) So if A, B and C jointly and severally owe P3,000.00 to D, and A paid P1,200.00 a question may arise as to whether he paid P400.00 for each, so that the liability of each solidary debtor will be reduced by that sum. The more practical solution however seems to be that A paid P1,000.00 for his share, for their liability is presumed to be equal, and 200.000 for B and C. 2. Payor Becomes Creditors of his Former Co-Debtors.-The second part of article 1145 may offer some doubt as to whether the interest will run in favor or for the benefit of the paying debtor, from the time it was made, without the necessity of previous declaration in the obligation or special intimation to the co-debtors or if on the contrary the payment of such interests (which will be of course those agreed upon and in its absence the legal interest) is governed by the rules and exceptions of the article 1100, Civil Code. It is believed that the application of the precept, "intereses correspondientes al anticipo" is to the sum paid and not to the time elapsed. (8 Manresa, page 216; See also Art. 1145-2, Civil Code.) (a) Action of the Debtor Paying.-Is based upon mutual agency implied in any joint and several obligation. This is reasonable because if one of the solidary debtors pays not only his share but the whole amount, it is but just he be reimbursed by his co-debtors as to the shares pertaining to them, and that the debtor is subrogated to rights of the creditor in order to demand reimbursement from his co-debtors. (I Giorgi, Teoría de las Obligaciones, pages 175-176.) |