Concept. — When there is a concurrence of two or more creditors or of two or more debtors in one and the same obligation, the obligation may be either joint (obligación mancomunada) or solidary (obligación solidaria). A joint obligation may be defi ned as an obligation where there is a concurrence of several creditors, or of several debtors, or of several creditors and debtors, by virtue of which each of the creditors has a right to demand, and each of the debtors is bound to render, compliance with his proportionate part of the prestation which constitutes the object of the obligation. In other words, each of the creditors is entitled to demand the payment of only a proportionate part of the credit, while each of the debtors is liable for the payment of only a proportionate part of the debt. A solidary obligation, on the other hand, may be defi ned as an obligation where there is a concurrence of several creditors, or of several debtors, or of several creditors and several debtors, by virtue of which each of the creditors has a right to demand, and each of the debtors is bound to render, entire compliance with the prestation which constitutes the object of the obligation. In other words, each of the creditors is entitled to demand the payment of the entire credit, while each of the debtors is liable for the payment of the entire debt.169
Idem; Comparative jurisprudence. — In the case of Jaucian vs. Querol,170 the Supreme Court had occasion to discuss the comparative jurisprudence on the subject. According to the Court:
“In Spanish law the comprehensive and generic term by which to indicate multiplicity of obligations arising from plurality of debtors or creditors, is mancomunidad, which term includes (1) mancomunidad simple or mancomunidad properly
168Art. 1206, par. 2, Civil Code.
169Art. 1207, Civil Code; 3 Castan, 7th Ed., pp. 65-66.
17038 Phil. 707.
Art. 1206
such and (2) mancomunidad solidaria. In other words, the Spanish system recognizes two species of multiple obligation, namely, the apportionable joint obligation and the solidary joint obligation. The solidary obligation is, therefore, merely a form of joint obligation.
“The idea of the benefi t of division as a feature of simple joint obligation appears to be a peculiar creation of Spanish jurisprudence. No such idea prevailed in the Roman law, and it is not recognized either in the French or in the Italian system.
“The conception is a badge of honor to Spanish legislation, honorably shared with the Spanish-American, since French and Italian codes do not recognize the distinction or difference just expounded between the two sorts of multiple obligation. (Giorgi, Theory of Obligation, Span. Ed., Vol. 1, p. 77).
“Considered with reference to comparative jurisprudence, liability in solidum appears to be the normal characteristic of the multiple obligation, while the benefi t of division in the Spanish system is an illustration of the abnormal, evidently resulting from the operation of a positive rule created by the lawgiver. This exceptional feature of the simple joint obligation in Spanish law dates from an early period; and the rule in question is expressed with simplicity and precision in a passage transcribed into the Novisima Recopilación follows:
“If two persons bind themselves by contract, simply and not otherwise, to do or accomplish something, it is thereby to be understood that each is bound for one-half, unless it is specifi ed in the contract that each is bound in solidum, or it is agreed among themselves that they shall be bound in some other manner, and this notwithstanding any customary law to the contrary. x x x’ (Law X, Title I, Book X, Novisima Recopilación, copied from law promulgated at Madrid in 1488 by Henry IV).
“The foregoing exposition of the confl ict between the juridical conception of liability incident to the multiple obligation, as embodied respectively in the common law system and the Spanish Civil Code, prepares us for a few words of comment upon the problem of translating the terms which we have been considering from English into Spanish or from Spanish to English.
“The Spanish expression to be chosen as the equivalent of the English word “joint” or “jointly’’ must, of course, depend upon the idea to be conveyed; and it must be remembered that the matter to be translated may be an enunciation either
DIFFERENT KINDS OF OBLIGATIONS Art. 1206 Joint and Solidary Obligations
OBLIGATIONS
of a common law conception or of a civil law idea. In Sharruf vs. Tayabas Land Co. and Ginainati (37 Phil. Rep. 655), a judge of one of the Courts of First Instance in these Islands rendered judgment in English declaring the defendants to be
‘jointly’ liable. It was held that he meant ‘jointly’ in the sense of ‘mancomunadamente’ because the obligation upon which the judgment was based was apportionable under Article 1138 (now Art. 1208) of the Civil Code. This mode of translation does not, however, hold where the word to be translated has reference to a multiple common law obligation, as in Article 698 of the Code of Civil Procedure. Here it is necessary to render the word ‘joint’
by the Spanish word ‘solidaria.’
“In translating the Spanish word ‘mancomunada’ into English a similar diffi culty is presented. In the Philippine Islands at least we must probably continue to tolerate the use of the English word ‘joint’ as an approximate equivalent, ambiguous as it may be to a reader indoctrinated with the ideas of the common law. The Latin phrase pro rata is a makeshift the use of which is not to be commended. The Spanish word
‘solidaria’ is properly rendered in English by the word ‘solidary,’
though it is not inaccurate here to use the compound expression
‘joint and several.’ The use of the Latin phrase ‘in solidum’ is also permissible. We close these observations with the suggestion that a person writing in English may at times fi nd it conducive to precision to use the expanded expression ‘apportionable joint obligation’ and ‘solidary joint obligation’ as conveying the full juridical sense of ‘obligación mancomunada’ and ‘obligacion solidaria,’ respectively.’’
Art. 1207. The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not imply that each one of the former has a right to demand, or that each one of the latter is bound to render, entire compliance with the prestation. There is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity.171
Nature of Collective Obligations in General. — According to the above article, when there is a concurrence of several creditors or of several debtors or of several creditors and debtors in one and the same obligation, there is a presumption that the obligation is joint
171Art. 1137, Spanish Civil Code, in modifi ed form.
Art. 1207
and not solidary. Consequently, where the obligation is silent with respect to the nature or character of the right of the creditors or of the liability of the debtors, each of the creditors is entitled to demand only for the payment of his proportionate share of the credit, while each of the debtors can be compelled to pay only his proportionate share of the debt.172 Thus, if A, B and C had executed a promissory note binding themselves to pay an indebtedness of P9,000 to X, Y, and Z, since the note is silent with respect to the character of the right of the creditors as well as the liability of the debtors, the obligation is, therefore, presumed to be joint.173 Upon maturity of the note the only right of each creditor would be to demand for the payment of his proportionate share of the credit, which in this particular case is presumed to be P3,000.174 Each debtor, on the other hand, can be compelled to pay only for his proportionate share of the debt.
Therefore, if X, for instance, will proceed against A for payment, the only amount which he can collect from the latter would be P1,000.
Consequently, if he wants to collect his entire proportionate share of P3,000, he must proceed not only against A, but also against B and C.
Idem; Exceptions. — There are, however, three exceptional cases or instances where collective obligations are solidary and not joint. They are: fi rst, when the obligation expressly states that there is solidarity; second, when the law requires solidarity; and third, when the nature of the obligation requires solidarity.175 In all of these cases, each creditor is entitled to demand for the payment of the entire credit, while each debtor can be compelled to pay for the entire debt. Thus, if A, B, and C are solidarily bound to pay an indebtedness of P9,000 to X, Y, and Z, anyone of the creditors can proceed against one, or some, or all of the debtors for the payment of the entire credit.176
Before the fi rst exception can be applied, the solidary character of the obligation must be made in express terms.177 It is not,
how-172Pimentel vs. Gutierrez, 14 Phil. 49; White vs. Enriquez, 15 Phil. 113; Agoncillo vs. Javier, 38 Phil. 424; Ramos vs. Gibbon, 67 Phil. 371; Inciong, Jr. vs. Court of Ap-peals, June 26, 1996, 257 SCRA 580.
173Art. 1297, Civil Code.
174Art. 1208, Civil Code.
175Art. 1207, Civil Code.
176Art. 1216, Civil Code.
177Gonzales vs. La Previsora Filipina, 74 Phil. 165.
DIFFERENT KINDS OF OBLIGATIONS Art. 1207 Joint and Solidary Obligations
OBLIGATIONS
ever, necessary that the agreement shall employ precisely the word
“solidary” in order that the obligation will be so; it is enough that the agreement will say, for example, that each one of them can be obligated for the aggregate value of the obligation.178 Thus, where the debtors agreed to pay the obligation “jointly and severally,”179 or “individually and collectively”180 everyone of them can be held re-sponsible for the payment of the entire obligation. Another example is where the promissory note expressly states that the three signato-ries therein are “jointly and severally liable.’’ Any one, some or all of them may be proceeded against for the entire obligation. The choice is left to the solidary creditor to determine against whom he will enforce collection. (Inciong, Jr. vs. Court of Appeals, June 26, 1996, 257 SCRA 580.)
Examples of the second exception are those provided for in Arts. 927, 1824, 1911, 1915, 2146, 2157, and 2194 of the Civil Code.
Another example would be that provided for in Art. 110 of the Revised Penal Code regarding the liability of principals, accomplices, and accessories of a felony.
Examples of the third exception are obligations arising from criminal offenses and torts. The responsibility of two or more persons guilty of a criminal offense or liable for a tort is solidary.
This is so because of the very nature of the obligation itself. It must be noted, however, that under Art. 110 of the Revised Penal Code, it is expressly stated that the responsibility of principals, accomplices, and accessories, each within their respective class, is solidary, and under Art. 2194 of the Civil Code, it is also expressly stated that the responsibility of two or more persons liable for a quasi-delict is solidary. Apparently, the obligations comprehended by the exception on which we are commenting are also included within the scope of the second exception. There are, however, some torts which cannot be classifi ed as quasi-delicts because the element of negligence does not enter as an essential requisite, such as interferences with human relations, nuisances, infringements of copyrights, patent or trademark, unfair competition and several others. Responsibility of joint tortfeasors in such cases is solidary because the nature of the
178Ysmael & Co. vs. Salinas and Delgado, 73 Phil. 601.
179Parot vs. Gemora, 7 Phil. 24.
180Oriental Commercial Co. vs. La Fuente, CA, 38 Off. Gaz. 947.
Art. 1207
obligation requires it. Thus, in a certain case, the Supreme Court declared:
“It may be stated as a general rule that joint tortfeasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done for their benefi t. They are each liable as principals to the same extent and in the same manner as if they had performed the wrongful act themselves.
Joint tortfeasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them or any number less than all. Each is liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignifi cant as compared with that of the others.’’181
Art. 1208. If from the law, or the nature of 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 equal 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.182
Joint Divisible Obligations. — The most fundamental effect of joint divisible obligations is that each creditor can demand only for the payment of his proportionate share of the credit, while each debtor can be held liable only for the payment of his proportionate share of the debt.183 As a corollary to this rule, the credit or debt shall be presumed, in the absence of any law or stipulation to the contrary, to be divided into as many shares as there are creditors and debtors, the credits or debts being considered distinct from one another, subject to the Rules of Court governing multiplicity of suits.184 From these rules which are expressly declared by the Code, it necessarily follows that a joint creditor cannot act in representation
181Worcester vs. Ocampo, 22 Phil. 42. To the same effect: Verzosa vs. Lim, 45 Phil. 416; Torebillas vs. Soques, CA, 46 Off. Gaz. 5618; Padilla vs. Hipomia, CA, G.R.
No. 4272-R, Feb. 17, 1951.
182Art. 1138, Spanish Civil Code, in modifi ed form.
183Art. 1207, Civil Code.
184Art. 1208, Civil Code.
DIFFERENT KINDS OF OBLIGATIONS Art. 1208 Joint and Solidary Obligations
OBLIGATIONS
of the others; neither can a joint debtor be compelled to answer for the liability of the others. Consequently, if there is a breach of the obligation by reason of the act of one of the debtors, the damages due to its breach must be borne by him alone.185 Similarly, if there is any defense which is purely personal to one of the debtors, he alone can avail himself of such defense.186 Thus, it has been held that payment or acknowledgment by one of the joint debtors will not stop the running of the period of prescription as to the others.187 This doctrine is in conformity with the opinion of Manresa to the effect that one of the necessary consequences of the rule stated in what is now Art. 1208 of the Civil Code is that “the interruption of prescription by the claim of a creditor addressed to a single debtor or by an acknowledgment made by one of the debtors in favor of one or more of the creditors is not to be understood as prejudicial to or in favor of the other debtors or creditors.’’188
Problem No. 1. — A, B, and C executed a promissory note binding themselves to pay P9,000 to X, Y, and Z. The note is now due and demandable.
(a) Can the creditors proceed against A alone for payment of the entire obligation? Why?
(b) Can X alone proceed against A, B and C for payment of the entire obligation? Why?
(c) Suppose that X proceeds against A alone for payment, how much can he collect? Why?
(d) Suppose that C is insolvent, can A and B be held liable for his share in the obligations? Why?
(e) Suppose that the obligation was about to prescribe, but X wrote a letter to A demanding for payment of the entire debt, will this have the effect of interrupting the running of the period of prescription? Why?
Answer — (a) The creditors cannot proceed against A alone for the payment of the entire obligation. Since the promissory note is silent with respect to the right of the creditors as well as the liability of the debtors, the obligation is, therefore, presumed
185Moller’s Ltd. vs. Sarile, 97 Phil. 985.
1868 Manresa, 5th Ed., Bk. 1, p. 425.
187Agoncillo vs. Javier, 38 Phil. 424.
1888 Manresa 182, cited in Agoncillo vs. Javier, 38 Phil. 424.
Art. 1208
to be joint (Art. 1207, CC). Consequently, the only right of such creditors if they proceed against A alone for payment would be to collect from him P3,000, which is his proportionate share in the obligation. (Ibid.) Once the amount is collected, it will then be divided equally among X, Y and Z. This is so because, under the law, in the absence of any legal provision or stipulation of the parties to the contrary, the credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors, the creditors or debts being considered distinct from one another (Art. 1208, CC).
(b) X alone cannot proceed against A, B and C for the payment of the entire obligation for the same reason stated in the previous paragraph. The most that he will be able to collect from the three debtors will be his proportionate share in the obligation which is P3,000 (Arts. 1207, 1208, CC). As far as the debtors are concerned, because of the principle that in joint obligations the credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors, the credits or debts being considered distinct from one another (Art.
1208, CC), the liability of each will be only with respect to his share in the P9,000. Consequently, X can collect only P1,000 from A, P1,000 from B, and P1,000 from C.
(c) If X proceeds against A alone for payment, the most that he will be able to collect will be only P1,000. The reason has already been stated in the previous paragraph.
(d) If C is insolvent, his co-debtors cannot be held liable for his share in the obligations. This necessarily follows from the principle that in joint obligation, the credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors, the credits or debts being considered distinct from one another (Art. 1208, CC).
(e) The demand made by X upon A, for the purpose of interrupting the running of the period of prescription, shall prejudice the latter only, but not the other debtors. Consequently, if after ten years, X, Y and Z should bring an action against A, B and C to collect the debt, the defense of prescription would be absolute insofar as B and C are concerned, but partial insofar as A is concerned. In other words, A can still be compelled to pay P1,000 to X. The reason for this is the fact that the principle of mutual agency is not applicable in joint obligations. (Agoncillo vs. Javier, 38 Phil. 424.)
Problem No. 2. — X, Y and Z owe A and B P12,000 in a joint obligation. How many obligations exist in this case, who
Problem No. 2. — X, Y and Z owe A and B P12,000 in a joint obligation. How many obligations exist in this case, who