USUALLY, when a number of parties are required to perform the obligation, there needs to be a careful determination if the intention is to bind them jointly or solidarily.
As explained by the Supreme Court: A solidary or joint and several obligation is one in which each debtor is liable for the entire obligation, and each creditor is entitled to demand the whole obligation.
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. (INIMACO v. NLRC, G.R. No. 101723 May 11, 2000).
In other words, in a joint obligation, compliance with the obligation may be enforced only against all the parties as a group and will be divided into as many shares as there are debtors. (Article 1208, Civil Code).
While in a solidary obligation, the creditor may proceed against any one of the solidary debtors or some or all of them simultaneously for the performance of the obligation. (See Waga, Handbook on Contract Drafting, p. 13), because “a solidary or joint and several obligation is one in which each debtor is liable for the entire obligation, and each creditor is entitled to demand the whole obligation.” (Sesbreo v. Court of Appeals, G.R. No. 89252, the May 24, 1993, 222 SCRA 466, 481.]
Simply put, if the obligation involves numerous debtors, and it is a joint one, each debtor can only be held liable for a specific portion of the debt/obligation.
In a solidary (or joint and several) obligation, a debtor can be held liable for the whole amount, and after that debtor pays the whole obligation, that same debtor can then proceed against his other debtors to be paid/reimbursed for the rest of the obligation.
Obviously then, one would prefer that an obligation like this be joint rather than solidary.
When can one tell if it is a joint or a solidary obligation? As a general rule, in order to be a solidary obligation, it must be expressly stated, since the legal presumption is against it. This was explained by the Supreme Court in this manner: Under Art. 1207 of the Civil Code, when there are two or more debtors in one and the same obligation, the presumption is that the obligation is joint so that each of the debtors is liable only for the proportionate part of the debt. There is a solidary liability only when the obligation expressly so states, when the law so provides or when the nature of the obligation so requires. [Sesbreo v. Court of Appeals, G.R. No. 89252, the May 24, 1993, 222 SCRA 466, 481.]
This is supported by Article 1208 of the Civil Code which provides that an obligation is presumed to be joint, to wit: 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.
The bottom line then when it comes to obligations is that one must check with his or her lawyer to ensure that one is not carelessly being roped into an unduly burdensome obligation such as a solidary obligation.
Atty. Kelvin Lee is a Partner of the Teves Cabiten Polinar Lee & Partners Law Firm. The opinions expressed herein are solely of Atty. Lee. This column does not constitute legal advice nor does it create a lawyer-client relationship with any party. You can reach Kelvin through his office at email@example.com.