§ 166 Solidary Obligations
The normal type of obligation is that in which there is one creditor and one debtor. It often happens, however, that there are two or more creditors entitled to the same obligation, or two or more debtors under the same liability. The case of two or more creditors gives rise to little difficulty, and requires no special consideration. It is, in most respects, merely a particular instance of co-ownership, the co-owners holding either jointly or in common, according to circumstances. The case of two or more debtors, however, is of some theoretical interest, and calls for special notice.
Examples of it are debts owing by a firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties, and the liability of two or more persons who together commit a tort. In all such cases each debtor is liable for the whole amount due. The creditor is not obliged to divide his claim into as many different parts as there are debtors. He may exact the whole sum from one, and leave that one to recover from his co-debtors, if possible and permissible, a just proportion of the amount so paid. A debt of £100 owing by two partners, A. and B., is not equivalent to one debt of £50 owing by A. and another of the same amount owing by B. It is a single debt of £100 owing by each of them, in such fashion that each of them may be compelled to pay the whole of it, but that when it is once paid by either of them, both are discharged from it.455
Obligations of this description may be called solidary, since in the language of Roman law, each of the debtors is bound in solidum instead of pro parte; that is to say, for the whole, and not for a proportionate part. A solidary obligation, therefore, may be defined as one in which two or more debtors owe the same thing to the same creditor. In English law they are of three distinct kinds, being either (1) several, (2) joint, or (3) joint and several.
1. Solidary obligations are several, when, although the thing owed is the same in each case, there are as many distinct obligations and causes of action, as there are debtors. Each debtor is bound to the creditor by a distinct and independent vinculum juris, the only connexion between them being that in each case the subject-matter of the obligation is the same, so that performance by one of the debtors necessarily discharges all the others also.
2. Solidary obligations are joint, on the other hand, when, though there are two or more debtors, there is only one debt or other cause of action, as well as only one thing owed. The vinculum juris is single, though it binds several debtors to the same creditor. The chief effect of this unity of the obligation is that all the debtors are discharged by anything which discharges any one of them. When the vinculum juris has once been severed as to any of them, it is severed as to all. Where, on the contrary, solidary obligations are several and not joint, performance by one debtor will release the others, but in all other respects the different vincula juris are independent of each other.
3. The third species of solidary obligation consists of those which are both joint and several. As their name implies, they stand half-way between the two extreme types which we have already considered. They are the product of a compromise between two competing principles. For some purposes the law treats them as joint, and for other purposes as several. For some purposes there is in the eye of the law only one single obligation and cause of action, while for other purposes the law consents to recognise as many distinct obligations and causes of action as there are debtors.
On what principle, then, does the law determine the class of which any solidary obligation belongs? Speaking generally, we may say that such obligations are several, when, although they have the same subject-matter, they have different sources; they are several in their nature, if they are distinct in their origin. They are joint, on the other hand, when they have not merely the same subject-matter, but the same source. Joint and several obligations, in the third place, are those joint obligations which the law, for special reasons, chooses to treat in special respects as if they were several. Like those which are purely and simply joint, they have the same source as well as the same subject-matter; but the law does not regard them consistently as comprising a single vinculum juris.
The following are examples of solidary obligations which are several in their nature:
(1) The liability of a principal debtor and that of his surety, provided that the contract of suretyship is subsequent to, or otherwise independent of the creation of the debt so guaranteed. But if the two debts have the same origin, as where the principal debtor and the surety sign a joint bond, the case is one of joint obligation.
(2) The liability of two or more co-sureties who guarantee the same debt independently of each other.456 They may make themselves joint, or joint and several debtors, on the other hand, by joining in a single contract of guarantee.
(3) Separate judgments obtained in distinct actions against two or more persons liable for the same debt. Two persons, for example, jointly and severally liable on the same contract may be separately sued, and judgment may be obtained against each of them. In such a case they are no longer jointly liable at all; each is now severally liable for the amount of his own judgment; but these two obligations are solidary, inasmuch as the satisfaction of one will discharge the other.
(4) The liability of independent wrongdoers whose acts cause the same damage. This is a somewhat rare case, but is perfectly possible. Two persons are not joint wrongdoers, simply because they both act wrongfully and their acts unite to cause a single mischievous result. They must have committed a joint act; that is to say, they must have acted together with some common purpose. If not, they may be liable in solidum and severally for the common harm to which their separate acts contribute; but they are not liable as joint wrongdoers. In Thompson v. The London County Council457 the plaintiff’s house was injured by the subsidence of its foundations, this subsidence resulting from excavations negligently made by A., taken in conjunction with the negligence of B., a water company, in leaving a water-main insufficiently stopped. It was held that A. and B., inasmuch as their acts were quite independent of each other, were not joint wrongdoers, and could not be joined in the same action. It was said by Lord Justice Collins:458 “The damage is one, but the causes of action which have led to that damage are two, committed by two distinct personalities.” The liability of the parties was solidary, but not joint.459 So also successive acts of wrongful conversion may be committed by two or more persons in respect of the same chattel. Each is liable in the action of trover to the owner of the chattel for its full value. But they are liable severally, and not jointly. The owner may sue each of them in different actions; though payment of the value by any one of them will discharge the others.460
Examples of joint obligations are the debts of partners, and all other solidary obligations ex contractu which have not been expressly made joint and several by the agreement of the parties.
Examples of joint and several obligations are the liabilities of those who jointly commit a tort or breach of trust, and also all contractual obligations which are expressly made joint and several by the agreement of the parties.