Riesgo de Tasa de Interés en el Balance

(2) Among the solidary debtors. — Payment by one of the solidary debtors does not create a real case of subrogation. (see Arts. 1302,

1303.) It merely entitles him to claim reimbursement from his co-debtors “only the share which corresponds to each.’’ (see Art. 1277.), i.e., only for their proportionate shares with (legal) interest only from the time of payment.

(a) The other debtors do not become by virtue of such payment solidary debtors of the debtor-payer. Their liability is not based on the original obligation which has been extinguished, but upon the payment made by the co-debtor which creates a joint obligation of reimbursement on the part of the others. (Art. 1208.) However, in case of insolvency of any of the solidary debtors, the others assume the share of the insolvent one pro rata. (pars. 2 and 3.)

(b) Payment by a solidary debtor does not automatically result in a corresponding obligation of the other debtors to reimburse the paying debtor. If a solidary debtor pays the obligation in part, he can recover reimbursement from the co-debtors only in so far as his payment exceeded his share in the obligation.

(c) If the amount is equal to his proportionate share in the obligation he, in effect, pays only what is due from him; if the amount is less than his share, he cannot demand reimbursement because his payment is less than his actual debt. (see Republlic Glass Corporation vs. Qua, 435 SCRA 480 [2004].)

(3) Among the solidary creditors. — The receiving creditor is jointly liable to the others for their corresponding shares. (Art. 1208.)

a. A, B, and C are the solidary debtors of D. A and B offer to pay. Is the creditor allowed to choose which offer to accept?

ANS.: Yes. “If two or more solidary debtors offer to pay, the creditor may choose which to accept.” (Art. 1217, 2nd sentence, Civil Code). Even if C has not offered to pay, it is believed that D would be allowed to make a demand upon C. “The creditor may proceed against any one of the solidary debtors.”

b. A, B, C, and D are solidary debtors of E to the amount of P1.2 million. A pays E the whole P1.2 million. Is A entitled to reimbursement from B, C, and D?

ANS.: Yes, reimbursement plus interest from the date of payment.

Are B, C, and D considered the solidary debtors of A?

ANS: No. With reference to the reimbursement B, C, and D are not solidary debtors of A but merely joint debtors of A. It is true that B, C, and D, together with A, used to be solidary debtors of E, but A’s payment to E of the whole amount has extinguished that solidary obligation, and what remains now is merely the joint obligation of reimbursement. As a matter of fact, the law provides that: “He who made the payment may claim from

his co-debtors only the share which corresponds to each, with the interest for payment already made.” (1st sentence, second paragraph, Art. 1217, Civil Code)

Since originally there were four debtors, each has a proportional share of P300,000 in the obligation. Hence, A can recover P300,000 with interest from each of the other three.

It should be noted, however, that the liability is not the ordinary joint one, for in the instant case, the insolvency of one must in the meantime be shouldered by the rest. (Last paragraph,Art. 1217, Civil Code).

CASE

INCHAUSTI & CO. V. YULO 34 PHIL. 978

FACTS: A, B, C, D, E, and F were solidary debtors of G to the amount of P253,445.42. Later in an agreement with B, C, D, E, and F, the debt was reduced by G to P225,000. G sued A. Because of the partial remission, A was made to pay only P225,000. Issue: How much can A recover from the other solidary debtors?

HELD: A can recover the proportional shares of the other, not with respect to P253,445.42 but with respect to P225,000, the amount as reduced. Since there are 6 solidary debtors, he can recover 1/6 of P225,000 from each plus interest from the time of payment.

BASIS OF THE RIGHT TO BE REIMBURSED

The fact of payment (and not the original contract) is the basis of the right to be reimbursed, for not until then had he the right to be reimbursed. Hence, the obligation of the others to reimburse him arises only from the time payment is made.

SUBSTITUTION OF PARTIES

A, B, and C are solidary debtors of X who sued all of them. If during the pendency of the case, A pays X, in the same action A can be changed from defendant to plaintiff in substitution of X. This is to enable A to collect reimbursement of contribution from B and C. PROBLEM #1

A and B were sued on a promissory note which read as follows: “Manila, May 1, 2004. For value received, we, the undersigned, promise solidarily to pay C or his order, on or before May 1, 2005, the sum of P1,000,000, plus an interest of 6% (Sgd.) A and B.” Should B turn out to be insolvent, may C recover allhis claim from A who is solvent? Why?

ANS.: Yes, because A had bound himself solidarily, without prejudice, of course, to his recovering later on from B, the share of B in the debt, plus interest from the date of payment. (Art. 1217, Civil Code).

PROBLEM #2

A, B, and C are joint and several debtors of D. D allows C an extension of two years within which to pay his portion of the indebtedness. Upon being sued by D, may A and B interpose the defense of the extension of the time granted to C? Should A and B eventually pay the entire obligation, may they compel C to reimburse them with his share without waiting for the two-year extension granted to D? Reasons.

Kristine Confesor

This is because A and B merely stepped into the shoes of the creditor D, and therefore C can plead against them the defense of extension of payment.

Art. 1218. Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal. (n)

EFFECT OF PAYMENT OF PRESCRIBED DEBT

A and B are solidary debtors of C to the amount of P1,000,000. The debt prescribed. But A voluntarily paid C, nevertheless, because A

felt morally obliged to so pay.

(a) May A recover from C what he has paid? (b) May A get any reimbursement from B? ANS.:

(a) A cannot recover from C what he has paid because it was voluntarily given after A knew of the prescription of the debt. The law says, “when a right to sue upon a civil obligation has lapsed by extinctive prescription, the obligor cannot recover what he has delivered or the value of the

service he has rendered.’’ (Art. 1424, Civil Code).

(NOTE: If payment had been made by A to C, without A knowing that the debt had prescribed, A can recover from C on the basis of solutio indebiti.)

(b) A cannot get any reimbursement from B because A paid the debt after it had prescribed. The law says, “Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal.” (Art. 1218, Civil Code).

EFFECT OF PAYMENT OF AN ILLEGAL OBLIGATION

A and B are solidarily bound to give C some drugs worth P1,000,000. Later, the law prohibits the transaction of said drugs, and declares the drugs to be outside the commerce of man. Knowing this, A nevertheless delivers the drugs to C. May A now get reimbursement from B?

ANS.: No, A cannot get any reimbursement from B because A made the payment after the obligation had become illegal.

Art. 1219. The remission made by the creditor of the share which affects one of the solidary debtors does not release the latter from his responsibility towards the co-debtors, in case the debt had been totally paid by anyone of them before the remission was effected. (1146a)

 If payment is made first, the remission (see Art. 1270.) or waiver is of no effect. There is no more obligation to remit.

 The purpose of the article is to forestall fraud whereby the debt having been paid, the creditor, who does not stand to suffer any loss or damage, remits the share of a particular debtor.

Inferentially, had remission preceded payment, the debtor whose share has been remitted cannot be made to reimburse anything, for after all, the payor-debtor will have paid only the balance of the debt (after deducting the share of the debtors who has received the benefit of the remission).

EFFECT OF REMISSION MADE AFTER TOTAL PAYMENT HAD ALREADY EXTINGUISHED THE OBLIGATION

This Article is designed to prevent fraud and to give justice to the paying debtor. (See 8 Manresa 226).

Example: A and B solidarily owe X P1,000,000. A paid X the whole amount. Later, X remitted B’s share. Can A still recover reimbursement of

P500,000 from B?

ANS.: Yes. Because there is nothing more to remit since the obligation has been extinguished by payment already made by X. PROBLEMS

a. A, B, and C solidarily owe X P3 million. X remitted C’s share. A, therefore, paid later only P2 million. Can A recover reimbursement? ANS.: Yes, but only from B and not from C, whose share had previously been remitted. Here, remission was previous to the payment.

b. In problem (a), how much can A recover from B and C?

ANS.: From B, P1 million with interest. From C, nothing, because C’s share had been remitted.

c. In problem (b), suppose B is insolvent, can C be made liable in the meantime for part of the insolvency? In other words, can A get anything from C, whose share the creditor had remitted?

ANS.: Yes, because under Art. 1217, “when one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation, such share must be borne by all his co-debtors in proportion to the debt of each.” In other words, even if C’s share has been remitted (and even if he therefore does not have to reimburse for his own share) he will still have to bear part of the burden of B’s insolvency, because the creditor’s act of liberality towards him cannot excuse him from fulfilling his legal duty under the provision hereinabove mentioned. Thus, B’s share of P1 million will be borne in the meantime by A and C, and C will have to give P500,000 to A. Later, C can recover from B, should the latter’s finances improve.

Kristine Confesor

Art. 1220. The remission of the whole obligation, obtained by one of the solidary debtors, does not entitle him to reimbursement from his co-debtors. (n)

Remission, it must be borne in mind, is essentially gratuitous. Note that this Article applies only when the whole obligation is remitted

.

A and B are solidary debtors of C to the amount of P1,000,000. C remitted the whole obligation when A offered to pay.

ANS: A here cannot get any reimbursement from B since after all, A did not pay anything to C. To allow the contrary would be to induce fraud and to countenance partiality.

Art. 1221. If the thing has been lost or if the prestation has become impossible without the fault of the solidary debtors, the obligation shall be extinguished.

If there was fault on the part of any one of them, all shall be responsible to the creditor, for the price and the payment of damages and interest, without prejudice to their action against the guilty or negligent debtor.

If through a fortuitous event, the thing is lost or the performance has become impossible after one of the solidary debtors has incurred in delay through the judicial or extrajudicial demand upon him by the creditor, the provisions of the preceding paragraph shall apply. (1147a)

EFFECT OF LOSS OR IMPOSSIBLITY OF THE PRESTATION 1. If without fault- no liability

2. If with fault – there is liability (also for damage and interest)

3. Loss due to fortuitous event after default- there is liability (because of delay) PROBLEMS

a. A and B are solidarily obliged to give C this particular car. The car was lost by a fortuitous event, and without any fault on the part of the debtors. What happens to the obligation?

ANS.: The obligation is extinguished. It is essential here, however, that the debtors be not guilty of default.

b. If in problem (a), the car was lost through the fault of A, and C makes a demand later upon B, should B be liable for the price of the car as well as damages or interest?

ANS.: Yes, B will still be liable even if he was not at fault at all. Remember that a solidary obligation implies mutual agency and mutual confidence. The law expressly makes B liable in such a case both for the price of the car as well as damages or interests, but B can later on recover from A the whole of what he paid, for had A not been at fault, the obligation would have been already extinguished.

c. A, B, and C are solidary debtors of D in an obligation to give a particular car. D makes an extrajudicial demand upon A. After the demand, the car was lost by a fortuitous event. Is the obligation extinguished? If not, what is D’s right?

ANS.: The obligation is not extinguished because the loss through a fortuitous event occurred after default on the part of the debtors had arisen. D’s right is to exact the price of the car from any of them. The debtors, however, who did not have a hand in the default (B and C) have the right to recover from their co-debtor, A, who after all, was

responsible due to his default. Tolentino Comment

Limited to the loss of the thing

 Effects provided in the present article are limited to the case of non-performance because of loss of the thing or impossibility of the prestation that is due. If the loss or impossibility is due to fortuitous event, without fault or delay on the part of any debtor, then the obligation is extinguished; no debtor can be held liable for damages.

LOSS/IMPOSSIBILITY DUE TO FAULT OR DELAY OF 1

NON-PERFORMANCE W/O LOSS but there is fraud, fault,

negligence, breach, etc The obligation is converted into an

obligation to pay indemnity (price, damages, interest).

The creditor may also recover indemnity for damages from any of the solidary debtors

The entire indemnity may be recovered by the creditor from the other debtors who were free from default or delay

As among themselves, however, the guilty debtor cannot be made to shoulder, as part of the indemnity, the shares of the co- debtors in the original obligation But the innocent debtors can

recover from the guilty debtor the FULL AMOUNT OF THE INDEMNITY they have paid to the creditor

Even the debtors who were free from delay must bear a PART OF THE PRICE OF THING; burden of innocent debtors not increased. The guilty debtor must shoulder

ALL THE CONSEQUENCES of the loss because of his fault or delay

The guilty debtor must shoulder the DAMAGES exclusively

Art. 1222. A solidary debtor may, in actions filed by the creditor, avail himself of all defenses which are derived from the nature of the obligation and of those which are personal to him, or pertain to his own share. With respect to those which personally belong to the others, he may avail himself thereof only as regards that part of the debt for which the latter are responsible. (1148a)

DEFENSES IN ACTIONS FILED

This Article applies in ACTIONS filed by the creditor. KINDS OF DEFENSES

Kristine Confesor