The joint and several obligation is an obligational relationship where a plurality of creditors or debtors concur. Thus, if there is more than one debtor, anyone can be required to pay and have to answer for all of them and not only for their part. Likewise, if there is more than one creditor, any one can be called to receive the total payment and not only the aliquot part of it.
This joint and several obligation means that the responsibility falls on only one of the parties, despite the fact that there are multiple parties. That is, if there are several creditors, the debtor can pay the debt to any of the creditors, or, if there are several debtors, the creditor can request the fulfillment of the obligation to any debtor.
In this obligation, as in all, two parties participate, creditor and debtor. The fact that there is a joint and several obligation simply means that there are two options:
- That there are multiple creditors and that the debtor can only decide to pay the total debt to one of them.
- That there are multiple debtors and that the creditor can decide whether to only require payment from one of the debtors, who will have to respond.
If the law or the parties do not indicate anything about the nature of the obligation when there is more than one party, both creditor and debtor, it is presumed that the obligation will be divided between the parties and is not joint and several. For there to be a joint and several obligation:
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- It must be expressly stated in the contract between the parties.
- The law must stipulate that this type of obligation is joint and several.
Joint and several creditor: active joint and several obligation
This legal bond formed by the joint and several obligation implies more than one creditor. The creditor may not unreasonably reject full payment of the debt if it is established by contract or law that this type of obligation exists.
If it does, this has several consequences:
- The creditor will be in default and the other creditors too.
- It means that the debtor can claim to have paid the obligation and free himself from the debt.
- In addition, if there are joint and several creditors, one by itself can demand that the obligation be fulfilled without counting on the rest.
Solidarity debtor: passive solidarity obligation
This legal bond formed by the joint and several obligation implies more than one debtor. Several people hold the category of debtors without one being able to respond first (subsidiary obligation) or only being able to demand the part of the debt that corresponds to each one (divided obligation).
In this case, the creditor can go to any of the debtors and claim the debt in full. This will also extinguish the obligation for the rest of the debtors.
The creditor chooses who demands the debt, one, several or all at the same time. If it is one of the debtors who faces the total of the provision, then he has the right of reimbursement against the other debtors so that each one pays his part.