obligation does not imply that each one of the former has a right to ask nor each one of the latter is bound to comply in full with the things which are the objects of the same. This shall only take place when the obligation determines it expressly, being constituted as a joint and several obligation." (See Co-Pitco vs. Yulo, 8 Phil. 545; Un Pak Leung vs. Nigorra et al., 9 Phil. 383; Dietrich vs. Freeman, 18 Phil. 341; Bachrack vs. La Protectora et al., 16 Off. Gaz. 214; White vs. Enriquez, 15 Phil. 113.) The Roman Law, Partidas, Fuero Real and many States of the American Union however have the presumption in favor of solidarity.

D. Reasons for Presumption in Favor of Joint Obligation

The basis of the presumption is clear and well founded. Solidarity among debtors supposes an abnormal increase of a person's responsibility which includes that of another. Solidarity among creditors benefits all the others in case any one of them has a valid defense to a claim but also prejudices the rest in case of omission of any of them. Hence between the abnormal and excessive responsibility in solidary obligation and the common and normal liability in joint the law presumes in favor of joint obligation. Solidarity therefore can not be established by mere silence and vague conjecture for only those who have expressly submitted to such liability will be responsible. (8 Manresa, pages 184-185.)

E. Exceptions to Presumption

1. Express, stipulation.-This hardly needs any explanation for Article 1137 of the Civil Code has laid down the rule of the presumption for joint obligation and therefore until the contrary appears the presumption is still in force. It is not however necessary to use the word "solidary" in a contract in order to convey that idea for any equivalent or analogous word is enough to rebut the established presumption. So, "where a promisory note is signed by two or more persons, promising to pay the amount of the said note ‘juntos óseparadamente,' such co-makers are individually liable for the payment of the full amount of the obligation of such contract."

The phrase "juntos ó separadamente" used in a contract creates the same obligation as the phrase "mancomum 6 in solidum." (Pavot vs. Genora, 7 Phil. 94, 97.)

The Supreme Court in deciding the case of Floriano vs. Delgado, 11 Phil. 157, held: "The judgment sentencing the defendants to pay the plaintiff the sum that they owe him together with interest thereon, must of course be understood as having been imposed upon them jointly in accordance with the mutual character of the obligation contracted by the debtors; and it can not be contended that each one of them has been severally sentenced to pay the whole amount stated in the document of indebtedness."

2. Operation of Law.—This takes place when the law itself prescribes joint and several (solidaria) obligations. The following are examples: Article 125, Penal Code reads "Notwithstanding the provision of the next preceding article, (if there are

two or more persons civilly liable for a felony or misdemeanor, the court shall determine the amount for which each must respond) the principals, accomplices and accessories each within their respective class shall be liable in solidum among themselves for the quotas, and subsidiarily for those of the other persons liable.

The subsidiary liability shall be enforced, first against the property of the principals; next against that of the accomplices; and lastly against that of the accessories. Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the other for the amount of their respective shares. (See Mendoza vs. De Leon, 14 Off. Gaz. 581.) Article 127 of the Code of Commerce provides "All members of the general copartnership, be they or be they not managing partners of the same are personally and jointly liable with all their property for the results of the transactions made in the name and for the account of the partnership, under the signature of the latter, and by a person authorized to make use thereof."

In an opinion of Dec. 17, 1873, the Supreme Court of Spain declared that all the members of a general copartnership, even though they be not administrators of the capital are jointly and severally liable for the results of the transactions made in the name and for the account of the partnership, although in order that the property of the partners may be seized, it is necessary to first liquidate the property of the same. An opinion of the same court on Jan. 8, 1881, is of the same tenor, forbidding any member of such copartnership to divert any part of the fund for the payment of his own debt until the liabilities of the copartnership have been paid and cancelled.

3. Testamentary Provisions.-Any obligation imposed by the testator in his last will is binding against the devisees and legatees and must be strictly complied with unless said obligation imposed is contrary to law or good moral. An example of this is when X a testator owes Y, P1,000.00 and institutes A and B as his heirs on condition that they pay Y, P1,000.00. A and B shall be jointly and severally liable for the amount upon their acceptance of the inheritance.

4. Obligations Arising from Quasi Contract.—Article 1892, par. 2 of the Civil Code provides that, "The responsibility of managers, when there are two or more shall be joint and several. Therefore gestors are jointly and severally liable for their common administrations of the property of a third person. An application of this according to the author's opinion is when A who was having his house built had to leave for some business and B and C his neighbors simultaneously took up the management of the work for their neighbor A, without the latter's authorization. In this case B and C would be jointly and severally liable to A on his return.

But if several gestors administer the business not simultaneously but sucessively and independent of each other, there is no solidarity. This doctrine however must not be confused with the provision of Article 1723 Civil Code which says that

the liability of two or more agents even when they have been simultaneously appointed shall not be joint and several unless it has been so stated. (See Martinez vs. Ong Pong Co., 14 Phil. 726.)

F. Credits and Debts Pertaining to Two or More Creditors and to Two or More

Debtors

1. Determination of the Respective Rights of Creditors and Debtors.-(a) Solutions.-(1) Manresa.-Article 1138 of the Civil Code provides, "If from the context of the obligations referred to in the preceding article, any other thing does not appear the credit and debt shall be presumed as divided into as many equal parts as there are creditors or debtors, being considered as credits or debts, each one different from the other." (Compañía General de Tabacos vs. Obed, 13 Phil. 391; Martinez vs. Ong Pongco, 14 Phil. 726; Isaac and Abella vs. Bray and Pardo, 30 Phil. 534, 536.) And Article 1139 of the Civil Code provides that "If the division should be impossible, the right of the creditors shall be only prejudiced by the collective acts of the same, and the debt shall only be recoverable by proceedings against all of the debtors. If any of the latter should be insolvent, the rest shall not be obliged to pay his share." It is evident that in determining the credits and debts of the creditors and debtors respectively we must resort to the context of the obligation itself but when this gives no light as to the nature of the obligation, the presumption in favor of joint obligation shall again operate. (8 Manresa, page 189.) The only remaining problem is the determination of the debtor of a creditor and vice versa. This state of affairs can not happen when there are only one creditor and various debtors; or when there are various creditors and one debtor. The problem presupposes an obligation with a plurality of debtors and a plurality of creditors. The solution here is the determination of the debts and credits of each one respectively when they are unequal. If the amount of the debt of one of the debtors coincides with the credit of one of the creditors the former must therefore be the debtor of the latter.

The difficulty arises when there are as many debtors as there are creditors and the presumption of equal shares does not operate. Here we can not definitely say who will be the debtor of one and who of the other. So also in the case when the number of creditors is greater or less than the number of debtors or when a debtor has to pay various creditors and vice versa. Another case of difficulty arises when the active and passive subjects are the same in number and the liabilities of the debtors do not correspond with the respective credits of the creditors. If, in an obligation of P500.00, A has a claim of P150.00, B P250.00 and C P100.00 while X one of the debtors has to answer only for P50.00, Y for P300.00 and Z for P150.00. The determination of the debtor of one is very important because one of the debtors may oppose prescription as his defense or because of the different securities provided by the debtor. In all these cases while the absence of proofs makes it impossible to determine the

respective debtor of each creditor, each creditor can ask from any debtor who has not yet paid his quota until the whole debt is paid. Of course no creditor can ask payment from a debtor who has already filled his share. There may be another solution according to Manresa. Any debtor can pay for his share to all the creditors in proportion to the credits owned by each creditor. (8 Manresa pages 191-192.)

(2) Sanchez Roman.-Sanchez Roman however has other solution. He contends that the share of each creditor shall be determined by their stipulations and in default thereof the presumption of equal shares shall govern. He also maintains that the creditors can bring their actions collectively against all the debtors; or each creditor can bring an action against one or more of the debtors until he is paid. (IV Sanchez Roman, page 48.)

G. Effects of Joint (Mancomunada) Obligation

Are the following: (1) Default on the part of any of the debtors does not prejudice the other debtors and any act of a co-creditor does not affect any of the other creditors; (2) When one of the creditors makes a demand so as to interrupt prescription, such interruption will not favor the other creditors. Similarly, an acknowledgment of debt by any of the debtors will not prejudice the other debtors in their claim for prescription; (3) Any hidden defect of any one of the obligations based on special disqualification of a certain debtor or creditor does not make the other obligations void; (4) Insolvency or noncompliance of one debtor will not increase the responsibility of the other debtors and neither will the creditor who is prejudiced by such insolvency or non-compliance be entitled to ask any share from the other creditors; (5) In divisible joint obligation the exception of the adjudicated thing (excepción de cosa juzgada) does not extend from one debtor to another.

In general therefore a debtor does not have any liability except his own, neither can each creditor have more right than what pertains to him. These are however subject to modifications in case of indivisible obligation. (8 Manresa, page 194.) H. Rights of Each Creditor in Case of Joint Creditors and Joint and Several Debtors. In case there is joint creditors (active) and passive solidarity each creditor can ask for the whole sum that belongs to him from any one of the debtors. (8) Manresa, page 195.)

1. Place. We shall consider here an obligation wherein concur the characteristics of the two kinds of obligations-joint and joint and several. In this case the indivisibility of subject matter makes some modification in the fulfillment of the obligation. The lack of power of each creditor to prejudice the others and the absence of obligation in each debtor to answer for the other, place this kind of obligation between joint and joint and several obligations. The fulfillment requires the con

currence of the debtors although each one for himself. This is also true of the creditors. To cut all the unnecessary discussions an example may be advisable. If A and B contributed P500.00 each and bought a house from C, D and F; A can ask C, D and F to give him his share but neither C, D and F nor any one of them can comply, since, if they deliver one-half of the house to A for the other half is to B, the house is no longer a house. The same is true of C, D and F who can not deliver their respective share without the concurrence of the rest.

2. Effect in Case of Default.—In case C is in default he will indemnify the damages caused while D and F will only give their just share. (See Arts. 1137, 1138, 1139, 1150, 1169, 1252 of the Civil Code.)

CHAPTER II

I. JOINT AND SEVERAL OR SOLIDARY OBLIGATION

A.

Derivation of the Word "Solidaridad" in General

The word "solidaridad" is a creation c science and not of law in order to express and designate that kind of obligation which the Roman jurisconsult call correi credendi ó stipulandi, which conveys the idea of two or more creditors and correi debendi ó promittendi, when various debtors take part in the contract. (I Giorgi Teoria de las Obligaciones, page 89.)

B. Nature

In this kind of obligation usually there is only one object but it does not necessarily follow that there must be one tie between creditors and a debtor or between a creditor and debtors as the case may be. All depends upon the contract agreed upon by the parties. (IV Sanchez Roman, page 50.)

Article 1140 of the Civil Code provides that "Solidarity may exist even when the creditors and debtors are not bound in the same manner and for the same period and under the same conditions."

C. Definition

If the obligation is such that either of the creditors can demand the whole contract from joint and several debtors or when either debtor can pay to any one of the creditors it is called solidary obligation. But if the obligation is such that the debtors must pay only their proportionate part in the contract or that each creditor can demand only his proportionate interest, then it is mancomunada or joint contract. (Viso, page 69.)

D. Essential Feature

1. Mutual Agency.-The essential feature or basis, as some call it, of joint and several (solidary) obligation is the mutual agency between the interested parties taking part in the obligation. Each creditor is authorized and empowered to enforce their rights equally against the debtor or debtors but with the duty of answering for the result of such act. This mutual agency exists also among joint and several