EXCURSUS VII.

JOINT AND SEVERAL LIABILITY. CORREALITY AND
SOLIDARITY.

THE simplest type of obligation is that in which there is but a single creditor and a single debtor. There may, however, possibly be two or more creditors, or two or more debtors, in the same obligation. Sometimes, it is true, this plurality of parties is apparent only, and not real it is seen, on a closer scrutiny, that there are, in reality, a number of separate obligations, each with its single creditor and its single debtor, and each distinguishable from each of the rest: the misapprehension arising from the fact that there is something which connects the several obligations with one another. For instance, if A, B, and C jointly promise 157. to D, or if D promises 157. to A, B, and C jointly, D can claim only 57. from each of the promisors singly, or each of the promisees can recover only 57. from him. Or again, if a debtor or creditor dies, leaving several joint heirs, they are entitled or bound, and can sue or be sued, only in the ratio of their shares in the inheritance. In all these cases there is no single obligation with a plurality of parties on either the creditor or the debtor side there is a number of separate and distinct obligations, which, in our minds, are connected together by the unity of the mode in which they originate.

A different form of apparent unity of obligation is that, where two or more persons are entitled or bound in the sense that each may claim, or be called upon to perform, the whole of what is due under the obligation, that whole being demandable as many times as there are creditors or debtors respectively. E. g. the law imposes a penalty of 10l. on any one who steals pheasants' eggs. A, B, and C together go and steal D's pheasants' eggs: D can recover the 10%. penalty from each of the three in succession, exactly as if he were the only delinquent, or as if the thefts were independent or disconnected. Roman law supplies an illustration in Dig. 9. 2. 11. 2 ' ex lege Aquilia

quod alius praestitit alium non relevat, cum sit poena.' So too if D injures A, B, and C by the same act, they can each separately recover from him the penalty fixed by law: the obligations are independent, though arising from one and the same source.

But a third case is conceivable. There may be one creditor entitled by different obligations against two or more debtors, or one debtor bound by different obligations to two or more creditors; but these obligations, though different from one another, may have one and the same object (act or forbearance): not similar objects, such as the payment of the 10/. penalty above, but the same object: so that when that object is once attained by the performance of one of the obligations, all the rest, no longer having any object, cease ipso facto to exist. E. g. A, B, and C jointly break my windows. Each is under a separate obligation to pay me for mending them, and I may sue which I please, apart from the rest, for the expenses to which I have been put; but if I recover the amount of the glazier's bill from A, I can no longer get it from B or C, for the claim is a civil one for compensation, not a quasi-criminal one for a penalty. In such a case, there are as many separate obligations as there are persons bound, but the object of all these obligations is the same: each debtor is, therefore, liable for the whole object, or liable in solidum (as distinct from the liability pro parte exemplified by a joint promise to pay 157.), but as the object is only one, it can only be once attained, and therefore performance by one of the joint debtors releases the rest. This is called solidary obligation: and as two or more debtors can be solidarily bound to one creditor (passive solidarity), so two or more creditors can be solidarily entitled against one debtor (active solidarity); i. e. either or any one of them can, without consulting the other or rest, claim the whole object (which forms the connecting link between the different obligations) from the single debtor; but as soon as he has done what he has to do for one, the vinculum iuris between him and all is severed, and he is free. The predominance of passive over active solidary obligation is so great that some writers have supposed the latter to have no real existence. There is a clear case of it, however, in Dig. 9. 4. 14. pr., though owing to its rareness we need not concern ourselves with it here.

Cases of the passive form are (1) the joint commission of a delict : the obligation of the co-delinquents to make compensation (though not that to pay a penalty) is solidary, Dig. 2. 10. I. 4; 4. 2. 14. 15. (2) The liability of cotutors for dolus and culpa in the discharge of their functions, Dig. 16. 3. 1. 43 ; 26. 7. 18. 1; 27. 3. 1. 13. (3) Where

two or more persons jointly incur a contractual but not correal (for which see below) liability (e. g. A and B jointly agree to act as agents for C, Dig. 17. 1. 60. 2; or as his depositaries, Dig. 16. 3. I. 43; or jointly borrow a thing for use, Dig. 13. 6. 5. 15), they are bound solidarily in respect of the duties which arise from the contract. Such joint contracts will not, however, in themselves create active solidary obligation, Dig. 16. 3. 1. 36; ib. 14. pr. (4) In mandatum qualificatum (Bk. iii. 26. 5) joint mandators incur solidary liability if the debtor is unable to pay himself, Dig. 46. 1. 52. 3: so too with constitutum debiti alieni (note on Bk. iii. 20. 8). (5) Where one room is jointly occupied by two or more persons they are liable in solidum to the actio de effusis et deiectis, Bk. iv. 5. 1 infr., Dig. 9. 3. I. 10; ib. 2−4.

Solidary obligation is terminated-i. e. all the solidary debtors are released, and the right of all the solidary creditors is extinguished— by simple satisfaction of the sole creditor, or by satisfaction of one of the creditors by the single debtor. This may occur (1) by performance, solutio, or (2) by set-off extending to the whole of the debt. But acquittal of one solidary debtor in an action brought on his obligation did not release the rest from theirs: 'plures eiusdem pecuniae mandatores, si unus iudicio eligatur, absolutione quoque secuta non liberantur, sed omnes liberantur pecunia soluta' Dig. 46. 1. 52. 3. Acceptilatio (Bk. iii. 29. 1) was equally inoperative, for it is neither payment nor equivalent to it and novatio (ib. § 3) extinguished solidary liability only so far as the object of the new obligation was quantitatively equivalent to that of the old. In short, the intervention of any event, which ordinarily destroys an obligation, between the creditor and one of the joint debtors, or between the debtor and one of the joint creditors, does not affect the liability of the other debtors, or the right of the other creditors, unless it is or amounts to performance.

I.

But, though the ultimate liability of each of several solidary debtors for the whole object of the obligation is clear, each ordinarily enjoyed the following rights: (a) except where he had been guilty of dolus, or of culpa in excess of the rest, he could claim to be primarily sued only for an aliquot part of the debt, Dig. 26. 7. 38. pr.: he could be called upon to pay more only if the rest or some of them were insolvent (beneficium divisionis). (b) If another or others of the debtors had been excessively in fault, he could in some cases (e. g. cotutors, Dig. 26. 7. 3. 2; ib. 39. 11; ib. 55. 2) demand that he or they should be sued before him (beneficium ordinis sive excussionis). (c) Where

he had not been guilty of dolus (Dig. 27. 3. 1. 13 and 14) and paid the whole, he had a ius regressus against the rest by which he could recover their respective shares of what he had paid. In (1) supr. this right of course did not exist: 'in pari delicto potior est condicio defendentis.'

From solidary we have to distinguish what is called correal obligation. This resembles the former, in that two or more creditors (correi stipulandi or credendi) are entitled against one debtor, or two or more debtors (correi promittendi or debendi) are bound to one creditor in respect of one and the same obligation-object, and so far we may say that every correal includes in itself a solidary obligation, each of the two or more creditors being entitled, and each of the two or more debtors being bound, in solidum. But it differs in that there is not only one obligation-object, but only one obligation. The unity of the object here follows necessarily from the unity of the obligation itself: where the liability is solidary, it arises from extraneous causes, for, given a variety of obligations, the natural and usual consequence would be a corresponding variety of objects.

It is thus the unity or identity of the obligation which distinguishes correal from merely solidary obligation: or, to put the matter in another form, when there is correality, there is, objectively, one single obligation, to which a variety of persons are subjectively related in solidum and their subjective relation may be different.

There is, objectively, but one single obligation. Hence any act or event (and not merely performance or its equivalent, as in cases of solidarity) which puts an end to the objective existence of that single obligation between the creditor and one of the debtors, or the debtor and one of the creditors, extinguishes it between them all; e. g. solutio or performance (Inst. iii. 16. 1, Dig. 45. 2. 3. 1), acceptilatio (Dig. 46. 3. 16), and novatio (Dig. 46. 2. 31. 1). Compensatio, or set-off, extinguishes correal obligation only if it goes to the whole debt, Dig. 20. 4. 4 but if correal debtor A is sued he cannot set off money owed to correal debtor B, unless he and B are partners, Dig. 45. 2. 10. So, too, if the creditor sued one of the debtors, or one of the creditors sued the debtor, the obligation was extinguished for all by the action's reaching the stage of litis contestatio, Gaius iii. 180, Dig. 45. 1. 116. In respect of passive correal obligation this was altered by Justinian's constitution in Cod. 8. 41. 28, which enacted that the debt should not be extinguished by litis contestatio, but only by satisfaction of the creditor: for active correal obligation the old rule seems to have continued, Dig. 45. 2. 2; 46. 2. 31. I. Further con

sequences of the unity of the obligation are that any act of a correus debendi, by which its performance becomes impossible or more difficult, prejudices the rest: 'ex duobus reis eiusdem Stichi promittendi factis alterius factum alteri quoque nocet' Dig. 45. 2. 18: as also does the interruption of prescription by one of them only.

But the subjective relation of the correi to the obligation need not be the same. Hence, as is said in Bk. iii. 16. 2, one correus debendi may be bound 'pure,' another sub condicione: one may be entitled or bound as principal, another only as accessory, as in the case of stipulator and adstipulator, Gaius iii. 110-114, or of debitor and fideiussor, Bk. iii. 20 or one may be in mora without prejudicing the rest, Dig. 22. 1. 32. 4: and other events, though not destroying the objective existence of the obligation, may modify the relation to it of this or that correus. Thus, for the operation of confusio (p. 474 supr.) cf. Dig. 46. 1. 71. pr. sed cum duo rei promittendi sunt, et alteri heres extitit creditor, iusta dubitatio est, utrum alter quoque liberatus est, ac si soluta fuisset obligatio, an persona tantum exempta, confusa obligatione et puto aditione hereditatis confusione obligationis eximi personam: . . . igitur alterum reum eiusdem pecuniae non liberari;' for capitis deminutio, Dig. 45. 2. 19 'cum duo eandem pecuniam debent, si unus capitis deminutione exemptus est obligatione, alter non liberatur;' for liberatio legata (Bk. ii. 20. 13 supr.), Dig. 34. 3. 3. 3 'si quidem mihi liberatio sit legata, . . . . et cum alio sim debitor, puta duo rei fuimus promittendi, et mihi soli testator consultum voluit, agendo consequar, non ut accepto liberer, ne etiam correus meus liberetur contra testatoris voluntatem, sed pacto liberabor.' Where the creditor agreed by pactum de non petendo not to sue one of two or more correi debendi, the other or rest could take advantage of the pactum only if, as it is said, it was in rem (see on Bk. iv. 14. 4 inf.), even though partners of the other, Dig. 2. 14. 25. 1, 'multum enim interest, utrum res ipsa solvatur, an persona liberetur' Dig. 45. 2. 19, 'in rem pacta omnibus prosunt, quorum obligationem dissolutam esse eius, qui paciscebatur, interfuit' Dig. 2. 14. 21. 5. Hence the pactum de non petendo in rem of one correus debendi benefits the rest whenever on payment by one of them he would have regressus against the others, for otherwise the pactum would be practically inoperative. But if, conversely, one of two or more correal creditors concluded a pactum de non petendo with their joint debtor, the latter could in no case plead it in defence to an action instituted by the other or others: 'si unus ex argentariis sociis cum debitore pactus sit, an etiam alteri noceat exceptio? Neratius, Atilicinus, Proculus, nec

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