Joint and several liability
The concept of joint and several liability (including liability jointly and severally ) is a legal term of German law ( in the Austrian and Swiss law also called Solidarschuld ). He describes a case of debtors, in which several debtors owe a creditor a power so that it can require each joint debtor the full power, but this is replaced by a total of only once. The total debt is in § § 420 ff.Vorlage: § / Maintenance / buzer BGB regulated.
- 4.1 ratio creditors - joint debtors
- 4.2 ratio of the creditor among each other (compensation claims )
- 4.3 Special case: Troubled total debt 4.3.1 Problem
- 4.3.2 Possible solutions
The term total debt is a translation of the Roman law concept of Correalobligation, but includes cases that were called for in law Solidarobligationen.
Emergence of the total debt
A total debt may be incurred by law or by contractual agreement. In German law, joint and several liability of several debtors in various places is arranged. So, for example, adhere have caused: ( § / Maintenance / buzer BGB § 840Vorlage ): ( Maintenance / buzer BGB § / § 830Vorlage ) or as independently acting side perpetrator as debtors and this irrespective of whether the harm as acting in complicity several tort tortfeasor. § 431Vorlage: § / Maintenance / buzer BGB orders a joint and several liability when multiple owe an indivisible performance. Great importance has also § 128Vorlage: § / Maintenance / buzer Commercial Code, which directs that more partners in a general partnership are liable for company debts jointly. This standard is applied by analogy to a partner in a civil law partnership. Other important arrangements of total debt are in 613aVorlage §: § / Maintenance / buzer paragraph 2, § 769Vorlage: § / Maintenance / buzer ( fellow citizens ) and § 1357Vorlage: § / Maintenance / buzer Section 1 ( spouse) BGB. In addition to these cases, there is more inside and outside of the CC. For example, members of a household are jointly and severally to broadcast delivery obligation (§ 2 radio talk State Treaty ).
Parties to a contract can have a total debt also in addition to the cases provided by law expressly contractually agreed. If there is a lack of a statutory provision or an express regulation, shall be determined by the design, whether a total debt is present or not. It was mutually agreed that from 421Vorlage §: § / Maintenance / buzer BGB minimum conditions to be taken, which are essential for the presence of total debt.
Whether in addition to these written conditions or other conditions must be met in order to assume a total debt may, is in dispute.
Currently, there is in any case agreed that the debt base need not be uniform. Thus, a total debtors owe damages in tort, while another jointly and severally liable under a contractual obligation for the same interest.
According to the Bundesgerichtshof ( BGH) Furthermore, it is not necessary for all joint debtors show an identical interest in performance. An architect and a contractor shall be liable for breach of contractual duty relating to the same structure even as a debtor, if the contractor is liable to subsequent performance and the architect for damages.
No total debt exists, however, for the prevailing doctrine and case law, if more than one debtor shall not be liable equally-. The requirement of equal temperament, replacing the previously required by the case law of convenience. Equal temperament is negative if one of the debtors is secondarily liable. Thus, for example, Guarantor and principal debtor is not a debtor, since a step ratio is and the principal debtor is to take primarily to complete. Therefore, the Company and its partners are not jointly and severally liable for the primary society. Likewise, an insurer shall be liable only in a subsidiary for damage caused by the insured damage. It is controversial whether a debtor with an enrichment damages debtor or a managing director shall be liable equally- without authority.
Contradicted by the very fact that a joint debtor in the internal relationship must bear the loss alone, not against one same fault. Thus, the Supreme Court affirmed the equal temperament of the obligations of a horse seller who delivered a poor horse, and a veterinarian, who did not recognize this deficiency in his investigation.
However, parts of the literature reject the requirement of equal temperament, they do not regard the criterion necessary in order to arrive at proper results. For the requirement of equal temperament is argued that only permits this criterion, the cases of a total debt of the cases of § 255Vorlage: delineate § / Maintenance / buzer BGB. This ensures a debtor payable to the cession of claims against third parties who are obliged substitute against him. In addition, it is argued that some legal consequences of total debt do not appear suitable, when a debtor is liable only secondary.
Of great importance for the adoption of a total debt by way of interpretation has 427Vorlage §: § / Maintenance / buzer BGB, which contains a doubt rule in favor of the adoption of a total debt at a Community contractual obligation. So Undertake several debtor contractually together in a benefit that is to be determined first by interpretation, whether a total guilt or some other form of debtors is intentional. If such an interpretation is not possible, the existence of a total debt is suspected. The party denies the existence of a total debt, so you have to prove in the process that no joint and several liability exists.
Demarcation of the total debt of other debtors majorities
From one part of the blame is to be assumed if the creditor has indeed several debtors of these but can only claim the amount in the external relationship, the debtor has to bear in the internal relationship. The position of the creditor is thus significantly weaker than that of the total debt, as it to get the full amount each creditor must sue and carries the risk of insolvency of each creditor.
No joint and several liability exists even if the performance can be rendered together only by all debtors because the creditor has no interest in power only a debtor. If a creditor, for example, wants to visit the booked concert of a music band, the singers, the debt can not meet alone. Thus, the rules of the total debt appear inappropriate.
Total debt Hand
The total debt of the debtors owe hand not every man for himself in the external relationship but only as a whole hand. This means that the creditor may require performance only by the whole hand. So he can not keep to a single borrower and demand of this accomplishment, but he has the community of joint request as a whole to perform.
No case of the total debt is, finally, when a damages requiring a debtor to its claims in relation to the matter to be replaced in accordance with § 255Vorlage of his creditors: § / Maintenance / can assign buzer BGB and going from these claims.
Legal consequences of the total debt
Ratio creditors - joint debtors
In the relationship between the creditor and his debtors leads the adoption of a joint and several liability means that the creditors of each debtor may demand full compliance (known as Pasha position). Which creditor, the debtor can satisfy, stands in his will. So he can only urge the total debtors to service and where appropriate sue, and apparently most most solvent. Restrictions of that right of the creditor made according to prevailing opinion hardly. Only in the case of oppressive use of a particular creditor, a correction according to § 242Vorlage: § / maintenance done / buzer BGB.
If the creditor of one joint debtor receives the power, even go out so that the claims against the other debtors. This also applies if the creditor is satisfied by set-off or other fulfillment surrogates. It should be noted that any creditor may only set off a claim that itself deserves ( § 422Vorlage: § / Maintenance / buzer BGB).
Unlike the fulfillment automatically perform legal acts of the creditor with a total debtors, not to an effect in favor of or against the other debtors. Rather, to be calculated at a remission of debt or a court settlement between the creditor and debtor by an overall design, whether the transaction is to get the total effect. Only if the total effect was intentional, the creditor loses his entire claim against the other debtors. An overall effect is the adoption in accordance with § 423Vorlage: § / Maintenance / buzer BGB will only be accepted if the circumstances of adoption suggests that the creditor wanted to adopt the guilt all joint debtors.
If there is no overall effect can be assumed to be determined by the design, whether at least a limited overall effect is intentional. Such would mean that the amount may require the creditor of the remaining joint debtor is to reduce the amount that would be entitled to the joint and several debtors in the internal relationship that will benefit from adoption.
If the design is not based even this result, the adoption has only single effect, so that the creditor is still able to claim from the remaining jointly and severally for the full amount. A decree is then only that the creditor need for the involvement of the beneficiary total debtor.
Debt thus two joint debtors to the creditor € 100 and is committed internally each jointly and severally liable to € 50 each and adopt the creditor the S1 his fault, he may also demand nothing of S2 with overall efficiency of the decree. If only limited overall effect before, it can save 50 € call while he may claim the full 100 € single action of S2.
The Supreme Court also rejects the comparison process, establish a presumption as a (limited) overall effect, so that the beneficiary -debtors must prove the will to (limited) overall effect.
§ 424Vorlage: § / Maintenance / buzer Civil Code defines an overall effect determined in terms of creditor default. Other facts that affect the debt ratio, have pursuant to § 425Vorlage: § / Maintenance / buzer BGB basically single action if it is clear from the circumstances of the obligation otherwise.
Thus, the fault affects, in principle, an obligation from a total debt ratio only for the debtor, the debt meets the accusation. Thus arises due to the fault of a total debtor a claim for damages, must pay compensation principle only these debtors. Results from the underlying contract, however, that the total debtors wanted to vouch for the fault of others, the fault of a total debtor can be attributed. Thus, the Supreme Court has a claim for damages against several liability members of a law firm in the affirmative, although only a lawyer at fault could be detected.
The statute of limitations joint entitlements are only single action. Thus, e.g. the limitation period of the claim be inhibited against the accused severally liable S1 by lis pendens, while the claims against other joint debtors during the trial expire. This shows that claims against joint debtors are basically self-employed and can, in contrast to the accessory claims develop differently.
Ratio of the creditor among themselves (compensation claims )
Pays a total debtor to the creditor as stand him in accordance with § 426Vorlage: § / Maintenance / buzer para 1 BGB a compensation claim against the debtor to the way total. The claim shall be limited in height to the part which each joint debtor shall bear the internal relationship. The law is in accordance with § 426 paragraph 1 sentence 1 BGB in a proportion of per capita basis. So sticking 4 total debtor to an amount of 100 €, it may require 25 € inclusive of fulfilling jointly and severally from each of the other co-debtors. But often arises from the contractual obligation to another distribution. Particular importance is attached 254Vorlage §: § / Maintenance / buzer BGB. Multiple debts tortfeasor damages, the sum of the proportion in the internal relationship to the degree of fault depends. So it is possible that a joint debtor in the internal relationship of any liability to indemnify is.
Before payment of any co-debtors against the co- debtor is entitled to a partial exemption.
In addition to the claim under § 426 para 1 BGB the paying total debtor receives pursuant to § 426 para 2 BGB by way of subrogation to take the claim of the original creditor against the other joint debtors, to the extent it is entitled to the other joint debtors regress. Also, the amount of its claim is therefore limited to the respective share in the internal relationship. The advantage of this claim lies in the transition of all accessory collateral the creditor. Was the claim of the creditor so secured by mortgage or guarantee, the guarantor liable now for the compensation claims of the performing total debtor. Disadvantage for the paying -debtors may affect that § § 401 ff.Vorlage: § / Maintenance / buzer BGB, the other co-debtors may apply and rely on defenses against the original creditor, so that, for example, continue to a claim against may set off creditors ( § 406Vorlage: § / maintenance / buzer BGB). There are differences between the two claims also with regard to the statute of limitations.
If a joint debtor was adopted his guilt single action, this does not prevent the co-debtors to refrain from the beneficiary -debtors compensation in the amount of its inner portion. It is the creditor not possible to free a total debtors from the internal liability, as this would constitute a contract to the detriment of third parties. So come to a decree or comparison only single effect to, the favored creditor must still participate in the internal compensation and benefits not as the agreed decree.
Special case: Troubled total debt
The term of the perturbed total debt, a situation is understood, in a total debt does not arise, because a potential joint debtor benefits from a Haftungspriviligierung. Haftungspriviligierungen may be made under a contract, or the law. Thus, the law assigns variously to a limitation of liability on the standard of liability of the intrinsically usual care. The Court chooses depending on the nature of the liability privilege different solutions, while the legal literature tends to a uniform solution.
The solution of the problem of the perturbed total debt is legally not specifically regulated. Conceivable are three different approaches:
1 It remains in legal terms. The remaining debtor must adhere fully to the creditor. The liability privileged tortfeasor can not be claimed by the creditor. This solution was by the Supreme Court, the statutory liability privilege of § 1664Vorlage: applied § / Maintenance / buzer para 1 BGB in favor of privileged parents there. For contractual liability privileges in any case, such a solution does, however, exposed to the objection that the remaining tortfeasor would be deprived of his recourse. In order for the privilege of liability between tortfeasors and injured party would be a contract to the detriment of third parties.
2 Another solution would be to fabricate a total debt in such a situation. Nonprivileged tortfeasor could then take the privileged tortfeasor recourse. This recourse, however, would make the disclaimer meaningless as the privileged tortfeasor would ultimately bear his share of the damage. In addition, the tortfeasor would be privileged with sole cause of the damage better than mere causation, for if he had caused the damage alone, it would benefit the disclaimer.
This result can only be prevented if the tortfeasor again a privileged recourse is made possible when injured. (so-called recourse gyro )
3 Finally, the compensation claim of the injured party against the tortfeasor by the amount of privileged tortfeasor caused the damage could be reduced. Thus, the disclaimer would act to the detriment of the victim. For this solution, it is argued that the disclaimer would also act with a damage only by the privileged at the expense of injuring the victim and this solution therefore had interests involved. The problem, however, is that such a solution is not apparent from the law.