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.
__________
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.
__________
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.
__________
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.
__________
§ 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.
__________
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.
__________
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 12211225, 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 n 337bis, 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), in Contrats
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).
1804.2. Remission compromise of obligation: effects for the other obligors
A remission or compromise of the obligation between the obligee and 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) The first sentence of this article reproduces CC art. 1803, ¶ 1 (rev.
1984), with only minor stylistic modifications. It does not change the law.
(b) The second sentence of this article is new. It does not, however,
change the law. Its sources include CC art. 1803, ¶ 1 (rev. 1984), in which the rule
it sets forth was merely implicit, and domestic and foreign civil law doctrine, which
explicitly endorses that rule. See, e.g., Alain Levasseur, LOUISIANA LAW OF
OBLIGATIONS IN GENERAL: A PRÉCIS 86 (3d ed. 1996); 1 Saul Litvinoff, THE LAW
OF OBLIGATIONS § 7.75, at 176-77, & § 7.83, at 189, in 5 LOUISIANA CIVIL LAW
TREATISE (1992); Philippe Simler, Solidarité n 151, at 18 (1998), in 10
ENCYCLOPÉDIE JURIDIQUE DALLOZ: RÉPERTOIRE DE DROIT CIVIL (1999); Yves
Picod, Remise de Dette n 74, at 11 (1997), in 9 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).
1806. Distribution of loss caused by post-release insolvency as between
obligee & remaining obligors
As between the obligee and the solidary obligors, a loss arising from the
insolvency of one of the solidary obligors must be borne by the other solidary
obligors, in the absence of a prior renunciation of solidarity or a prior remission or
compromise of the obligation.
An obligor in whose favor solidarity has been renounced, though he is no
longer liable to the obligee for the entirety of such a loss, nevertheless remains liable
to the obligee, notwithstanding his joint liability, for his share of such a loss. This
share is equivalent to the share of such a loss for which the obligor would be
responsible to the remaining solvent obligors pursuant to article 1807, ¶¶ 1 & 2.
An obligor who has entered into a remission or compromise of the
obligation with the obligee is not liable to the obligee, in whole or in part, for such a
loss. The share of such a loss that, but for the remission or compromise, would have
been borne by such an obligor must be borne instead by the obligee. If such a loss is
realized, the remaining obligors are, therefore, entitled to a deduction against the
obligee to that extent.
Comments
(a) The first paragraph of this article is new. It does not, however, change
the law. The rule it sets forth is drawn from CC art. 1806, ¶ 1, in which the rule
may be said to have been implicit, and from domestic and foreign civil law
doctrine, which has endorsed the rule explicitly. See, e.g., 1 Saul Litvinoff, THE LAW
OF OBLIGATIONS § 7.83, at 188, in 5 LOUISIANA CIVIL LAW TREATISE (1992); JeanLouis Baudouin, LES OBLIGATIONS n 865, at 490-91 (4th ed. 1993); Henri &
Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: OBLIGATIONS–THÉORIE
GÉNÉRALE n 1063, at 1122-23 (François Chabas rev., 8th ed. 1991); Alex Weill &
François Terré, DROIT CIVIL: LES OBLIGATIONS n 929, at 1002 (3d ed. 1980); 2A Jorge Joaquín Llambias, TRATADO DE DERECHO CIVIL: OBLIGACIONES n
1233, at 535 (3d ed. c. 1980); 3 Henri de Page, TRAITÉ ÉLÉMENTAIRE DE DROIT
CIVIL BELGE n 312, at 310 (3d ed. 1967).
(b) The second paragraph of this article is new. The rule it sets forth is
drawn from CC art. 1806, ¶ 2, in which the rule may be said to have been implicit,
and from domestic and foreign civil law doctrine, which has endorsed the rule
explicitly. See, e.g., 1 Saul Litvinoff, THE LAW OF OBLIGATIONS § 7.83, at 189, in 5
LOUISIANA CIVIL LAW TREATISE (1992); 13 Gabriel Baudry-Lacantinerie & L.
Barde, TRAITÉ THÉORIQUE ET PRATIQUE DE DROIT CIVIL nn 1262-1263, at 37275 (4th ed. 1905).
(c) The operation of the rule set forth in the second paragraph of this
article may be illustrated as follows. Suppose that A, B, and C are solidary obligors
of X for a debt of three thousand dollars, that X renounces solidarity in favor of C,
and that B then becomes insolvent. X can “call C back” for the purpose of
demanding that he pay (in addition to what he may yet owe X for his “joint” share
of the obligation) his portion of the share of the insolvent obligor, B, which would
be five hundred dollars.
(d) The third paragraph of this article is new. It does not, however,
change the law. Its content is drawn from domestic and foreign civil law doctrine.
See, e.g., 1 Saul Litvinoff, THE LAW OF OBLIGATIONS § 7.83, at 189-90, in 5
LOUISIANA CIVIL LAW TREATISE (1992); Philippe Simler, Solidarité n 151, at 18
(1998), in 10 ENCYCLOPÉDIE JURIDIQUE DALLOZ: RÉPERTOIRE DE DROIT CIVIL
(1999); Yves Picod, Remise de Dette n 74, at 11 (1997), in 9 ENCYCLOPÉDIE
JURIDIQUE DALLOZ: RÉPERTOIRE DE DROIT CIVIL (1999); 14 Gabriel BaudryLacantinerie & L. Barde, TRAITÉ THÉORIQUE ET PRATIQUE DE DROIT CIVIL n
1792, at 120 (4th ed. 1905); 4 Victor Marcadé, EXPLICATION THÉORIQUE ET
PRATIQUE DU CODE CIVIL n 802, at 642 (7th ed. 1873).
(e) The operation of the rule set forth in the third paragraph of this article
may be illustrated as follows. “A question of fairness subsists . . . if another obligor
becomes insolvent once the obligee has made a remission of the debt to one of his
solidary obligors, because, if the one remitted may no longer be called to contribute
to make up for the portion of the insolvent, the burden of the remaining solvent
solidary obligors will seemingly thereby be increased. Resorting to the same
example used before, it would seem that, if X remits the debt to C, A and B are still
solidarily liable to X for two thousand dollars and, if B becomes insolvent, A will
have to render the whole performance without being allowed to call back C to
share in the loss caused by B’s insolvency. That is not so, however, because the
obligee who remits the debt in favor of one of his solidary obligors shares in the
loss resulting from the insolvency of another by losing the amount the remitted
obligor would have had to contribute had he not been favored by a remission of
the debt. Thus, if B becomes insolvent once X has made a remission to C, A is
liable to X for only fifteen hundred dollars, as he should contribute only one half of
the loss resulting from B’s insolvency, since the other half would have been
contributed by C had he not been remitted.” 1 Saul Litvinoff, THE LAW OF
OBLIGATIONS § 7.83, at 190, in 5 LOUISIANA CIVIL LAW TREATISE (1992).
1807. Distribution of loss caused by post-release insolvency as among the
remaining obligors
As among the solvent obligors, a loss arising from the insolvency of a
solidary obligor must be borne by the other solidary obligors each in proportion to
his portion.
An obligor in whose favor solidarity has been renounced, notwithstanding
his joint liability, nevertheless remains liable to the solvent obligors to contribute to
make up for such a loss.
An obligor who has entered into a remission or compromise with the obligee
is no longer liable to the solvent obligors to contribute to make up for such a loss.
Comments
(a) The first paragraph of this article
reproduces the substance of CC art. 1806, ¶ 1 (rev.
1984). It does not change the law.
(b) The operation of the rule set forth in the
first paragraph of this article may be illustrated as
follows. “[I]f A, B, and C are solidary obligors of X
for a debt of three thousand dollars, and X renounces
solidarity in favor of C, . . . [and] B is insolvent,
then . . . the portion of the insolvent B would . . .
[be] divided between A and C, for an additional
liability of only five hundred dollars over and above
their original virile shares of one thousand dollars
each. “ 1 Saul Litvinoff, THE LAW OF OBLIGATIONS § 7.83,
at 190, in 5 LOUISIANA CIVIL LAW TREATISE (1992).
(c) The second paragraph of this article
reproduces the substance of CC art. 1806, ¶ 2 (rev.
1984). It does not change the law.
(d) The operation of the rule set forth in the
second paragraph of this article may be illustrated
as follows. “[I]f A, B, and C are solidary obligors
of X for a debt of three thousand dollars, and X
renounces solidarity in favor of C, . . . [and] B is
insolvent, then A will owe two thousand dollars to X
and, absent a calling back of C, will bear the entire
burden of the loss resulting from B’s insolvency,
while if X had not renounced solidarity to C, then
the portion of the insolvent B would have been
divided between A and C, for an additional liability
of only five hundred dollars over and above their
original virile shares of one thousand dollars each.
[Thus, if X compels A to pay the entirety of the two
thousand dollars that he and B owe, A can then,
through an action in contribution, recover this
“additional” sum of five hundred dollars from C.]
The contribution still owed by a solidary obligor who
has benefitted from a renunciation of solidarity, in
case of insolvency of another obligor, restores
fairness by preventing an increase of the burden of
the other, solvent obligors.” 1 Saul Litvinoff, THE
LAW OF OBLIGATIONS § 7.83, at 189, in 5 LOUISIANA CIVIL LAW
TREATISE (1992).
(e) The third paragraph of this article is new.
It does not, however, change the law. It merely
elevates to the status of legislation a rule stated
in comment (c) to CC art. 1805 (rev. 1984) ("An
obligor who has been released by his obligee is no
longer an obligor and therefore cannot be made a
third party.")
This rule has the support of domestic civil law
doctrine. See, e.g., Alain Levasseur, LOUISIANA LAW OF
OBLIGATIONS IN GENERAL: A PRÉCIS 91 (3d ed. 1996); 1 Saul
Litvinoff, THE LAW OF OBLIGATIONS § 7.82, at 187, & §
7.83, at 190, in 5 LOUISIANA CIVIL LAW TREATISE (1992).