Joint and several liability of multiple debtors | Lawyer Mihail Tomov | Varna

Joint and several liability on the debtor side combines several obligations with a single object of performance. There are several legal relationships involving the same creditor and different debtors, each owing the same performance. The statutory effects of joint and several liability are described as absolute or relative according to whether they operate in the same way for all the debtors.

One absolute effect is that the creditor may assert its rights against one debtor, several or all of them (Article 122(1) of the Obligations and Contracts Act). A defendant cannot insist that the creditor divide the claim among the debtors or, where several people caused the harm, apportion it according to each person’s contribution. A debtor who performs more than their share, assessed in a case of harm according to their contribution, may then recover the excess from the other co-debtors under Article 127(2).

Another absolute effect is that the debtor sued must raise against the creditor all defences common to the co-debtors. This follows by converse reasoning from Articles 122(3) and 127(3).

Bringing an action against one debtor does not affect the creditor’s rights against the others (Article 122(2)). This relative effect follows from the independent nature of each relationship between creditor and debtor. The creditor may sue the debtors separately until paid in full. Each right of action derives from a separate substantive right against the individual debtor. A court hearing a separate claim against one or more debtors may award what is claimed within the total debt, but no more than the outstanding balance. Procedurally, this independence means that joint and several debtors are ordinary, not necessary, co-parties. The remaining debtors need not be joined to proceedings brought against one of them.

This article is not a legal opinion or advice on any particular situation or person. For legal assistance in a similar case, consult a lawyer.

Lawyer Mihail Tomov | Varna