Chapitres+obligation+conjointe,+divisible,+indivisible,+solidaire,+in+solidum+Lluelles-Moore+-+Chris

__ JOINT OBLIGATIONS __ __ Rules __ 1518. An obligation is joint between two or more debtors where they are obligated to the creditor for the same thing but in such a way that each debtor may only be compelled to perform the obligation separately and only up to his share of the debt. An obligation is joint between two or more creditors where each creditor may only exact the performance of his share of the claim from the common debtor. 1519. An obligation is divisible by operation of law, unless it is expressly stipulated that it is indivisible or unless the object of the obligation, owing to its nature, is not susceptible of division either materially or intellectually.  1520. An indivisible obligation is not susceptible of division, either between the creditors or the debtors or between their heirs. Each of the debtors or of his heirs may separately be compelled to perform the whole obligation and, conversely, each of the creditors or of his heirs may exact the performance of the whole obligation, even though the obligation is not solidary. (((1521. A stipulation of solidarity does not make an obligation indivisible. 1522. A divisible obligation binding only one debtor and one creditor may be performed between them only as if it were indivisible, but it remains divisible between the heirs. __ Notes (Moore) __ // Illusory unity // : any unity of action or of juridical situation in joint obligations is an illusion – it’s really as if the co-debtors had each individually contracted individual debts – because each debtor is responsible for only his or her part, it’s as if there is a “fractioning” of any common debt // Paying more than one’s share // : note that it is possible to pay more than one’s share – even in joint obligations. In that case, the payer can recover the surplus amount paid via action in unjust enrichment, management of the business of another, or mandate. There must not be an intention liberale, however; otherwise, we are dealing with a gift -BUT in my recursory action as a co-debtor, I cannot take advantage of any securities accorded to the creditor // Mutual representation not at play // : -so an action against one co-debtor would not result in the interruption of prescription vis-à-vis the other co-debtors -AND, the extra judicial mise-en-demeure of one of the co-debtors does not result in the mise-en- demeure of them all // The responsibility of heirs: // article 823 establishes that heirs and successors of joint obligations are held only to their parts // Joint co-creditors: // have to deal with inconvenience in that they have to act together to achieve payment of their debt // The suppletive rule: // a contrario, 1544 states that obligations involving multiple persons will be joint unless expressly stipulated __ SOLIDARY OBLIGATIONS __ __ Rules __ 1523. An obligation is solidary between the debtors where they are obligated to the creditor for the same thing in such a way that each of them may be compelled separately to perform the whole obligation and where performance by a single debtor releases the others towards the creditor. 1524. An obligation may be solidary even though one of the co-debtors is obliged differently from the others to perform the same thing, such as where one is conditionally bound while the obligation of the other is not conditional, or where one is allowed a term which is not granted to the other. 1525. Solidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or imposed by law. Solidarity between debtors is presumed, however, where an obligation is contracted for the service or carrying on of an enterprise. The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the carrying on of an enterprise. 1526. The obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra-contractual. 1527. Where specific performance of an obligation has become impossible through the fault of one or more of the solidary debtors, or after he or they have been put in default, the other co-debtors are not released from their obligation to make an equivalent payment to the creditor, but they are not liable for additional damages which may be owed to him. The creditor may not claim additional damages except from those co-debtors through whose fault the obligation became impossible to perform, and from those who were then in default. 1528. The creditor of a solidary obligation may apply for payment to any one of the co-debtors at his option, without such debtor having a right to plead the benefit of division. 1529. Proceedings instituted against one of the solidary debtors do not deprive the creditor of his remedy against the others, but the debtor sued may implead the other solidary debtors. 1530. A solidary debtor who is sued by his creditor may set up all the defenses against him that are personal to him or that are common to all the co-debtors, but he may not set up defenses that are purely personal to one or several of the other co-debtors. 1531. Where, through the act of the creditor, a solidary debtor is deprived of a security or of a right which he could have set up by subrogation, he is released to the extent of the value of the security or right of which he is deprived. 1532. A creditor who renounces solidarity in favour of one of the debtors retains his solidary remedy against the other debtors for the whole debt. 1533. A creditor who receives separately and without reserve the share of one of the solidary debtors and specifies in the acquittance that it applies to that share renounces solidarity in favour of that debtor alone. 1534. Where a creditor receives separately and without reserve the share of one of the debtors in the periodic payments or interest on the debt and specifies in the acquittance that it applies to his share, he loses his solidary remedy against that debtor for the periodic payments or interest due, but not for any that may become due in the future, nor for the capital, unless separate payment is continued for three consecutive years. 1535. A creditor who sues a solidary debtor for his share loses his solidary remedy against him if the debtor acquiesces in the demand or is condemned by judgment. 1536. A solidary debtor who has performed the obligation may not recover from his co-debtors more than their respective shares, although he is subrogated to the rights of the creditor. 1537. Contribution to the payment of a solidary obligation is made by equal shares among the solidary debtors, unless their interests in the debt, including their shares of the obligation to make reparation for injury caused to another, are unequal, in which case their contributions are proportional to the interest of each in the debt. However, if the obligation was contracted in the exclusive interest of one of the debtors or if it is due to the fault of one co-debtor alone, he is liable for the whole debt to the other co-debtors, who are then considered, in his regard, as his sureties. 1538. A loss arising from the insolvency of a solidary debtor is equally divided between the other co-debtors, unless their interests in the debt are unequal. A creditor who has renounced solidarity in favour of one debtor, however, bears the share of that debtor in the contribution. 1539. A solidary debtor sued for reimbursement by the co-debtor who has performed the obligation may raise any common defenses that have not been set up by the co-debtor against the creditor. He may also set up defenses which are personal to himself, but not those which are purely personal to one or several of the other co-debtors. 1540. The obligation of a solidary debtor is divided by operation of law between his heirs, except where it is indivisible. 1541. Solidarity between creditors exists only where it has been expressly stipulated. It entitles each of them to exact the whole performance of the obligation from the debtor and to give a full acquittance for it. 1542. Performance of an obligation in favour of one of the solidary creditors releases the debtor towards the other creditors. 1543. A debtor has the option of performing the obligation in favour of any of the solidary creditors, provided he has not been sued by any of them. A release from the obligation granted by one of the solidary creditors releases the debtor, but only for the portion of that creditor. The same rule applies to all cases in which the obligation is extinguished otherwise than by payment thereof. 1544. An obligation for the benefit of a solidary creditor is divided by operation of law between his heirs. __ Notes (Moore) __ // Passive solidarity: // many debtors linked to a common creditor. It is advantageous to the creditor in that it represents a guarantee that the obligation will be performed, because of art 1538. Note that if the prestations due from each debtor are different in kind or nature, we can’t have a solidary obligation – even if the juridical act linking the debtors to the common creditor is the same. -however, one must also note that the nature of the obligations CAN be different – for instance, it could be that A and B could each be held for the whole obligation, but B can only be held if a condition were filled, for example // Renunciation: // the creditor can renounce solidarity in favour of one of the debtors. This releases him from the obligation to pay his (equal) part of the share of any co-debtors that have become insolvent (this is set out in 1538). Renunciation needs only be obvious; one needn’t use the words “I renounce.” -there are some instances where it can be implicit: for example, if I pay and my creditor says that the payment was received __for my share of the debt__ and gives acquittance for this – then we have renunciation. Similarly, if the creditor launches a lawsuit for a co-debtor’s share and he wins, or the co-debtor pays, then solidarity is renounced. (Articles 1533 and 1535). // Mutual representation: // the co-debtor may oppose himself to a creditor’s claim using personal recourses (incapacity, non-arrival of what was promised) or recourses that are common to the group (public order objections, objections based on contractual formalities missing). There are also mixed oppositions, like (((express release (1690), compensation (1678), and confusion (1695). // Primary advantages: // choosing your debtor, guarantee that the obligation will be performed. // Secondary advantages: // interruption of prescription for one co-debtor interrupts it for all (2900), can change debtors mid-demand (1529), extrajudicial mise-en-demeure of one is MED of all (1595, 1599). Note that 1594, 1597, and 1596 provide for MED situations where only one co-debtor is mis-en-demeure. // Forfeiture of term: // 1516 provides that expiry of one co-debtor’s term does not mean expiry of that of all the others // Transactions with the common creditor: // if done by one of the co-debtors, it is not opposable to the others (by the creditor) if it causes them prejudice. // Relations between co-debtors: // -payment in full liberates one (1671) and all (1523) -recovery of the amount paid that does not make up the co-debtor’s share happens via mandate or gestion d’affaires, or UE or (((recours subrogatoire. Thus, he is now a creditor vis-à-vis his colleagues. Repayments must be more or less egalitarian unless debt interests are unequal (1537) -subrogation (1651): the co-debtor that re-paid assumes all the rights of the creditor -despite this, his claim vis-à-vis the co-creditors is joint (1536). One can stipulate otherwise by K, however // Proof of relationship // : burden is on the person invoking it, because of the very heavy load it places on debtors. Relationship must arise by express stipulation, using “clear and precise” language – but not necessarily the word “solidary” itself. // Sources of solidarity: // a fault committed jointly (1526 – must be a “factual unity” says Moore), OR a situation where more than one author committed the same fault and we can’t determine which fault led to the prejudice (3 hunters shoot, can’t tell whose bullet – article 1480 – codified jurisprudence that found solidary liability because of the problem of a factual link) -another source: contracting an obligation for the service or carrying on of an enterprise (1525) – here, solidarity is presumed, because of the need for efficiency, simplicity, and security in business. Can be done away with in K. // Situations where solidarity is presumed // -2326: if 2 or more people borrow a non-consumable good, like a car, they have a solidary obligation to reimburse the lender for damage or deterioration. Can be done away with in K. -397: if one spouse contracts for the needs of her family, the other will be solidarily liable to perform the obligation -art 44, //Loi du notariat// -2144: co-mandataries have a solidary obligation toward the principal – unlike in French law, this exists “de plein droit” -2118: architect, engineer, and entrepreneur and sub-contractor can be held solidarily liable for the loss of a work, under certain conditions. Why? Because it’s so hard to determine who caused what, who bears what share of responsibility. Note that this does not touch //jus commune// obligations, like the obligation to respect building regulations. // Active solidarity: // a situation in which there are many creditors and one debtor. The debtor gets to choose which creditor to repay, as long as he is not being sued by one of them (1543). (((Its advantage is that it helps avoid fractioning of recourses -unlike passive solidarity, it is NEVER presumed – so co-victims of a fault don’t have a solidary claim – 1526 does not create an opposite number “en matiere de creance”  -the only way in which a creance will be considered solidary is if this is expressly stipulated pursuant to article 1541 __ IN SOLIDUM OBLIGATIONS __ // Origin: // France, which does not have a 1526 allowing for solidary extra-contractual liability. As a result, France created the //in solidum// obligation, whereby the victim can go after one of the authors of a prejudice but without the benefits of proper solidarity (i.e., those relating to prescription or mise-en-demeure; see above)  -note that despite this, in Quebec, 1526 creates perfect solidarity, with ALL its advantages // Retains many of the advantages of solidarity: // no division, choice of debtor, change of debtor. The opposability options of article 1530 and 1539 also apply. Like solidarity, the prestations of the co-debtors must be the same. // Retains right of recovery // //and subrogation// // No secondary advantages: // Moore says this makes sense, because we cannot say that //in solidum// debtors coordinated or organized their efforts as solidary debtors would have. So we cannot say they mutually represent one another -thus: the MED of one co-debtor is not the MED of all, and the interruption of the prescription period of one is not the interruption of the prescription period of all // What situations give rise to in solidum obligations: // // - // if a 3rd party plays a common role with a co-contractant in breach of K -an extra-K fault of a third party that results from the non-performance of obligations of a co- contractant -two separate K faults, related to a common objective -successive Ks that agree to repay a debt – the first seller has an in solidum claim against all the next ones -debiteurs alimentaires under 593 -actions based on the transmission of right intimately connected to the transmitted good (see 1442) -some say that 1463 (employer’s liability) should be an in solidum obligation, not a solitary one, because the fault of the employer and the employee are necessarily different
 * //__ COMPLEX MODALITIES OF OBLIGATIONS: Joint, Divisible, Indivisible, and Solidary Obligations – Week of September 29 and October 1 – CCQ arts. 1497 to 1552 (Moore Summary with CCQ included) __//**