Retrojet
for the
Civil Code Articles re Solidarity
§ 1. Solidarity in general
1790. Solidarity: definition
An obligation is solidary for the obligees when each of the obligees has the right to demand the whole performance from the common obligor.
An obligation is solidary for the obligors when each of the obligors is liable for the whole performance to the common obligee.
Comments
(a) The first paragraph of this article reproduces CC art. 1790 (rev. 1984) with only minor stylistic modifications. It does not change the law.
(b) The first paragraph of this article reproduces CC art. 1794 (rev. 1984) with only minor stylistic modifications. It does not change the law.
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1791. Solidarity: presumption against & sources of
Solidarity shall not be presumed. A solidary obligation can arise only from a clear expression of the parties’ intent or by operation of law.
Comments
This article reproduces CC art. 1796 (rev. 1984) with only minor stylistic modifications. It does not change the law.
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1792. Solidarity: variation in sources
An obligation may be solidary though, as to each obligor, it arises from a different source.
Comments
This article reproduces CC art. 1797 (rev. 1984) with only minor stylistic modifications. It does not change the law.
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1793. Solidarity: variation in modalities
An obligation may be solidary though, as to one or some of the obligors but not as to the others, it is subject to a condition or a term.
Comments
This article reproduces CC art. 1798 (rev. 1984) with only minor stylistic modifications. It does not change the law.
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§ 2. Active solidarity
1794. Active solidarity: prerogatives of obligor
As long as no solidary obligee has yet brought an action against the common obligor, the latter, at his option, may render the whole performance to any of the solidary obligees. In so doing, the common obligor extinguishes the obligation as to all of the solidary obligees.
Comments
This article reproduces the substance of CC art. 1791 (rev. 1984). It does not change the law.
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1795. Active solidarity: vertical effects: prescription
Any act that interrupts prescription as to one of the solidary obligees interrupts prescription as to all of them.
Comments
This article reproduces the substance of CC art. 1793 (rev. 1984). It does not change the law.
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1796. Active solidarity: vertical effects: putting in default
Any act or other event that puts the common obligor in default as to one of the solidary obligees puts him in default as to all of them.
Comments
This article is new. It does not, however, change the law. The rule it sets forth is drawn from (i) domestic and foreign civil law doctrine, within which the rule enjoys unanimous support, see, e.g., Alain Levasseur, Louisiana Law of Obligations In General: A Précis 82 (3d ed. 1996); 1 Saúl Litvinoff, The Law of Obligations § 7.53, at 155, in 5 Louisiana Civil Law Treatise (1992); Jean-Louis Baudouin, Les Obligations n 864, at 490 (4th ed. 1993); Henri & Léon Mazeaud et al., Leçons de Droit Civil: Obligations–Théorie Générale n 1055, at 1118 (François Chabas rev., 8th ed. 1991); Alex Weill & François Terré, Droit Civil: Les Biens n 928, at 1002 (3d ed. 1980); 2-A Jorge Joaquín Llambias, Tratado de Derecho Civil: Obligaciones n 1215, at 521 (3d ed. c. 1980); 3 Henri de Page, Traité Élémentaire de Droit Civil Belge n 337bis, at 329 (3d ed. 1967), and (ii) various foreign civil codes, see, e.g., Civil Code of Venezuela art. 1248 and Italian Civil Code art. 1309, ¶ 2. See also Franco-Italian Projet for a Code of Obligations & Contracts art. 156 (1927).
1796.1. Active solidarity: vertical effects: liability for damages
Indemnification for common losses that are occasioned by a failure of performance that is attributable to the fault of the common obligor may be recovered by any of the solidary obligees.
Comments
(a) This article is new. It does not, however, change the law. The rule has been recognized in foreign civil law doctrine, see 2-A Jorge Joaquín Llambias, Tratado de Derecho Civil: Obligaciones n 1221-1225, at 528-30 (3d ed. c. 1980), and, in some civil law jurisdictions, has even been codified. See, e.g., Civil Code of Argentina arts. 710-711.
(b) A “common loss” is “a loss experienced or a gain forgone in circumstances such that any person, in the same condition, would likewise have been injured in the same manner.” 24 Charles A. Demolombe, Cours de Code Napoléon: Traité des Contrats: en Général n 581, at 558-69 (1877). It is distinguished from a “particular” loss, that is, one that a determinate person suffers by virtue of “causes particular or personal to him.” Id. at 569. See also 1 Jorge Joaquín Llambias, Tratado de Derecho Civil: Obligaciones n 236, at 292 (3d ed. c. 1980).; 1 Guillermo A. Borda, Tratado de Derecho Civil: Obligaciones n 140, at 151 (4th ed. 1976).
1797. Active solidarity: vertical effects: remission, compromise, giving in payment, novation
A remission, compromise, giving in payment, or a novation of the obligation entered into by the common obligor and one of the solidary obligees extinguishes the obligation only as to the portion of that obligee.
Compensation or confusion between one solidary obligee and the common obligor extinguishes the obligation only as to the portion of that obligee.
Comments
(a) To the extent that this article specifies the effects of a remission of the obligation by a solidary obligee, it merely reproduces CC art. 1792 (rev. 1984) with only minor stylistic modifications. It does not change the law on this matter.
(b) To the extent that this article specifies the effects of compensation between the obligor and a solidary obligee, it merely reproduces CC art. 1898 (rev. 1984). It does not change the law on this matter.
(c) To the extent that this article specifies the effects of confusion between the obligor and a solidary obligee, it merely reproduces CC art. 1905, ¶ 2 (rev. 1984). It does not change the law on this matter.
(d) To the extent that this article specifies the effects of a compromise, giving in payment, or novation of the obligation by a solidary obligee, it is new. It does not, however, change the law. The rules that it sets forth regarding the effects of such juridical acts are drawn from (i) domestic and foreign civil law doctrine, see, e.g., Alain Levasseur, Louisiana Law of Obligations In General: A Précis 82-83 (3d ed. 1996); 1 Saúl Litvinoff, The Law of Obligations § 7.54, at 156, in 5 Louisiana Civil Law Treatise (1992); 3 Boris Stark, Obligations: Régime Générale n 220, at 132 (Henri Roland & Laurent Boyer revs., 4th ed. 1992); 2 Gabriel Marty & Pierre Raynaud, Droit Civil: Les Obligations: Le Régime n 106, at 95 (Philippe Jestaz rev., 2d ed. 1989); see also 3 Henri de Page, Traité Élémentaire de Droit Civil Belge n 337bis, at 329 (3d ed. 1967), and (ii) various foreign civil codes, see, e.g., Civil Code of Venezuela art. 1247; German Civil Code arts. 429 & 425. See also Franco-Italian Projet for a Code of Obligations & Contracts art. 155 (1927).
1798. Active solidarity: horizontal effects: distribution among obligees
Among the solidary obligees, each is entitled to his virile portion of the performance and of the common damages. Regardless of the source of the obligation, the virile portions of solidary obligees are equal in the absence of an agreement or a judgment to the contrary.
A solidary obligee who receives the whole performance from the common obligor is responsible to each of the other obligees for that obligee’s virile portion of that performance.
A solidary obligee who collects common damages from the common obligor pursuant to article 1796.1 is responsible to each of the other obligees for that obligee’s virile portion of those damages.
Comments
(a) This article is new. It does not, however, change the law. The rules it sets forth are drawn from (i) domestic and foreign civil law doctrine, within which the rules enjoy unanimous support, see, e.g., Alain Levasseur, Louisiana Law of Obligations In General: A Précis 83 (3d ed. 1996); Jean-Louis Baudouin, Les Obligations n 864, at 490 (4th ed. 1993); 3 Henri & Léon Mazeaud et al., Leçons de Droit Civil: Obligations–Théorie Générale n 1055, at 1118 (François Chabas rev., 8th ed. 1991); Alex Weill & François Terré, Droit Civil: Les Biens n 928, at 1002 (3d ed. 1980); 2-A Jorge Joaquín Llambias, Tratado de Derecho Civil: Obligaciones n 1226-1232, at 531-35 (3d ed. c. 1980); 3 Henri de Page, Traité Élémentaire de Droit Civil Belge n337bis, at 330 (3d ed. 1967); see also 1 Saúl Litvinoff, The Law of Obligations § 7.53, at 155, in 5 Louisiana Civil Law Treatise (1992), and (ii) various foreign civil codes, see, e.g.,Civil Code of Argentina art. 708.
(b) The operation of the rules set forth in this article may be illustrated as follows. A, B, and C “pool” their funds for the purpose of extending a loan to X. Each of the three lenders contributes one thousand dollars to the pool. The instrument evidencing the loan provides that the lenders are “solidarily” entitled to repayment of the full amount, that is, three thousand dollars. When the loan falls due, X defaults. A then obtains a judgment against X for the unrendered performance of three thousand dollars and for moratory damages occasioned by the default in the amount of three hundred dollars. B can then demand that A turn over to him one thousand, one hundred dollars, which represents one-third of the performance and one-third of the common damages.
§ 3. Passive solidarity
1799. Passive solidary: prerogatives of obligee
The common obligee, at his choice, may demand the whole performance from any of the solidary obligors. A solidary obligor to whom such a demand is made may not request division of the debt.
Until the obligation is extinguished, the common obligee may institute an action against any of the solidary obligors even after the obligee has instituted an action against one or more of the other solidary obligors.
Comments
This article reproduces CC art. 1795 (rev. 1984) with only minor stylistic modifications. It does not change the law.
1800. Passive solidarity: effects of performance
Rendition of performance to the common obligee by one of the solidary obligors extinguishes the obligation as to all of them. If the whole performance is rendered, the obligation is extinguished in its totality. If a partial performance is rendered, the obligation is extinguished only to that extent.
A common obligee who receives a partial performance from a solidary obligor separately preserves the solidary obligation against all the obligors, including that obligor, after deduction of that partial performance.
Comments
(a) The first sentence of the first paragraph of this article reproduces the substance of CC art. 1794, sent. 2 (Rev. 1984). It does not change the law.
(b) The second and third sentences of the first paragraph of this article are new. They do not, however, change the law. The rules that they set forth are particularizations of the general rules regarding the effects of performance, including partial performance. See generally CC arts. 1854 (rev. 1984) & 1861 (rev. 1984).
(c) The second paragraph of this article reproduces the second sentence CC art. 1802 (rev. 1984) with only minor stylistic modifications. It does not change the law.
(d) This article, like CC art. 1802 (rev. 1984), clearly contemplates a situation in which the obligor's "partial performance" is not rendered in conjunction with (i) a renunciation of solidarity in favor of that obligor or (ii) a remission or compromise of the obligation between the obligee and that obligor. See 1 Saul Litvinoff, The Law of Obligations § 7.74, at 175-76, in 5 Louisiana Civil Law Treatise (1992). In neither of those situations does the obligee preserve the solidary obligation as to the "performing" obligor. See infra CC arts. 1802.3 (rev. 2000) & 1803.2 (rev. 2000).
1801. Passive solidarity: effects: prescription
Any act that interrupts prescription as to one of the solidary obligors interrupts prescription as to all of them and their heirs.
Comments
This article reproduces CC art. 1799 (rev. 1984) with only minor stylistic modifications. It does not change the law.
1802. Passive solidarity: effects: putting in default
Any act of event that puts the common obligor in default as to one of the solidary obligees puts him in default as to all of them.
(a) This article is new and not new. It is new in that it has no counterpart in the Civil Code as revised in 1984 nor, for that matter, in the Civil Code of 1870. But it is not entirely new, for it did have a counterpart in both the Civil Code of 1825 (article ?) and the Digest of 1808 (bk. 3, tit. 3, art. ____). Why no corresponding article appears in the Civil Code of 1870 is not clear. There is no indication in the legislative history of that code, however, that the legislature, by failing to enact such an article, intended to suppress the rule set forth in article ? of the Civil Code of 1825 and . . . . The enactment of this new article 1802, then, does not change the law.
(b) The rule set forth in this article enjoys unanimous support in domestic, French, Belgian, and Québécois civil law doctrine. See, e.g., Alain Levasseur, Louisiana Law of Obligations In General: A Précis 85 (3d ed. 1996); 1 Saúl Litvinoff, The Law of Obligations § 7.71, at 170, in 5 Louisiana Civil Law Treatise (1992); Jean-Louis Baudouin, Les Obligations n 879, at 499 (4th ed. 1993); Henri & Léon Mazeaud et al., Leçons de Droit Civil: Obligations–Théorie Générale n 1063, at 1123 (François Chabas rev., 8th ed. 1991); Alex Weill & François Terré, Droit Civil: Les Biens n 939, at 1009 (3d ed. 1980); 3 Henri de Page, Traité Élémentaire de Droit Civil Belge n 354, at 342 (3d ed. 1967).
1803. Renunciation of solidarity: possibilities & form
An obligee may renounce solidarity as to all or fewer than all of the solidary obligors. Such a renunciation must be express.
Comments
(a) The first sentence of this article is new. It does not, however, change the law. It merely renders explicit a rule that was implicit in CC arts. 1802, sent. 1 (rev. 1984), & 1806, sent. 2 (rev. 1984).
(b) The second sentence of this article reproduces the first sentence of CC art. 1802 (rev. 1984). It does not change the law.
1803.1. Renunciation of solidarity: effects for obligor in whose favor solidarity is renounced
Except as otherwise provided by law, a solidary obligor as to whom solidarity has been renounced thereupon becomes a joint obligor.
Comments
(a) This article is new. It does not, however, change the law. It is based upon domestic and foreign civil law doctrine. See, e.g., 1 Saul Litvinoff, The Law of Obligations § 7.83, at 189, in 5 Louisiana Civil Law Treatise (1992); Philippe le Tourneau, Solidarité n 151, at 18 (1998), in 10 Encyclopédie Juridique Dalloz: Répertoire de Droit Civil (1999); 4 Victor Marcadé, Explication Théorique et Pratique du Code Civil n 802, at 642 (7th ed. 1873).
(b) To say that one obligor is joint is to imply that there is, in addition to that obligor, at least one other who likewise is joint. In the setting to which this article is addressed, this “other” joint obligor is the ensemble of the remaining obligors (that is, those as to whom solidarity was not renounced) considered as a unit. As among themselves, these obligors remain solidarily bound for their collective “joint” share of the obligation (that is, that which remains of the original obligation after deduction of the share of the other joint obligor). See generally Alain Levasseur, Louisiana Law of Obligations In General: A Précis 90 (3d ed. 1996).
(c) Classifying the obligor as to whom solidarity has been renounced as a joint obligor carries with it a number of important consequences. Chief among them is that the obligee can demand from this obligor no more than his share of the obligation. See CC art. 1788, ¶ 1. Others include the following: (i) interruption of prescription as to this obligor does not interrupt prescription as to the others (and vice-versa) and (ii) putting this obligor in default does not put the others in default (and vice-versa).
(d) The "other" provisions of law to which the introductory phrase of this article refers include new CC art. 1806, ¶ 2 (rev. 2000), & 1806.1, ¶ 2 (rev. 2000).
1803.2. Renunciation of solidarity: effects for other obligors
Renunciation of solidarity by the obligee in favor of one solidary obligor benefits the other solidary obligors in the amount of the portion of that obligor. The remaining obligors are, therefore, entitled to a deduction against the obligee to that extent.
Comments
(a) This article is new. It does not, however, change the law. It is drawn from domestic and foreign civil law doctrine. See, e.g., 1 Saul Litvinoff, The Law of Obligations § 7.74, at 175, & § 7.83, at 189, in 5 Louisiana Civil Law Treatise (1992); Philippe le Tourneau, Solidarité n 151, at 18 (1998), in 10 Encyclopédie Juridique Dalloz: Répertoire de Droit Civil (1999); Jacques Mestre & Marie-Ève Tian, Solidarité Passive nn 126, at 28 (1995), inContrats et Obligations: Obligations Conjointes et Solidaires: Solidarité fasc. 2, Art. 1197 à 1216, fasc. 20, Juris-Classeur Civil (1998).
(b) The operation of the rules set forth in this article may be illustrated as follows. “[I]if A, B, and C are solidary obligors of X for a debt of three thousand dollars, and X renounces solidarity in favor of C, then, assuming C made no payment on the debt, he becomes separately bound for one thousand dollars, and A and B remain solidarily bound to X for two thousand dollars.” 1 Saul Litvinoff, The Law of Obligations § 7.83, at 189, in 5 Louisiana Civil Law Treatise (1992).
(c) That the obligee receives a performance from the solidary obligor in connection with the renunciation of solidarity does not affect the operation of the rules set forth in this article. Whether the obligee receives from that obligee nothing at all, a performance equal to that obligor's share, or a performance in excess of that obligor's share, the effect of the renunciation is the same: the other obligors receive no more and no less than a deduction in the amount of the portion of that obligor.
1804. Remission or compromise of solidary obligation: possibilities & form
An obligee may enter into a remission or compromise of the obligation with all or fewer than all of the solidary obligors.
Surrender to one solidary obligor of the instrument evidencing the obligation gives rise to a presumption that the remission of the obligation was intended for the benefit of all the solidary obligors.
Comments
(a) The first paragraph of this article is new. It does not, however, change the law. It merely renders explicit a rule that was implicit in CC art. 1803 (rev. 1984).
(b) The new legislation, following that which it replaces, does not subject remission or compromise between the obligee and one or more solidary obligors to any special form requirement. Compare CC art. 1802.1 (rev. 2000) (subjecting renunciation of solidarity to such a requirement). The form of such a juridical act, then, will be governed by the law of remission or the law of compromise, as the case might be. See CC art. 1888, sent. 2 (rev. 1984) (remission: express or tacit), & art. 3071, ¶ 2 (compromise: written or transcribed as recited in open court).
(c) The second paragraph of this article reproduces CC art. 1803, ¶ 2 (rev. 1984), with only minor stylistic modifications. It does not change the law.
1804.1. Remission or compromise of obligation: effects for obligor who is party to remission or compromise
A remission or compromise of the obligation between the obligee and one solidary obligor extinguishes the solidary obligation as to that obligor.
Comments
This article is new. It does not, however, change the law. The rule it sets forth is but a particularization of the general rules regarding the effects of a remission, on the one hand, and a compromise, on the other. See CC art. 1888, sent. 1 (rev. 1984) (remission) & art. 3071, ¶ 1 (compromise); see also Alain Levasseur, Louisiana Law of Obligations In General: A Précis 91 (3d ed. 1996); 1 Saul Litvinoff, The Law of Obligations § 7.75, at 176-77, in 5 Louisiana Civil Law Treatise (1992).