Joint and Several Liability: A Comparative and Historical Overview from a Civilian Perspective
Traditionally, the theory of joint and several liability (“solidary obligations” in the continental legal systems) is conceived as a way of protecting the creditor’s interests. Accordingly, its distinctive feature consists of the so-called libera electio by the creditor. If several debtors are jointly and severally liable for the same performance, the creditor would always be entitled to claim it from any one of them. So the creditor will, in the ordinary case, presumably opt for the wealthiest among the co-debtors. This is a well-established mechanism stretching back to the Roman legal tradition. It is today widespread in several national civil codes (France, Germany, Spain) and also acknowledged by the English common law. In particular, the broad powers historically granted to the creditor stem from a specific view of joint and several liability, which was passed down from Roman Law and, despite some uncertainties, through the ius commune. However, from a comparative law perspective, some doubts about such an entrenched conception are raised by cases in which it applies to co-debtors who are obliged for what might be thought of as diverging interests (eg, in Italy, surety and main debtor are jointly and severally liable). This circumstance leads us to reflect upon the nature of joint and several liability, trying to ascertain whether the libera electio always constitutes an essential element of this kind of liability. In this respect, European private law calls for special attention, especially when one of the co-debtors is in a weak position.
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