Joint several liability in the bulgarian law
Joint several liability exists when two or more parties are liable for one obligation. The creditor can demand the obligation in full amount from either party but he has only one cause of action. The persons who are liable for the obligation are called joint several debtors. The joint several liability is settled in Art. 121 – 127 from the Obligations and Contracts Act (OCA).
Joint liability can come into being in two ways – by law and from a contract. The OCA makes provisions for joint several liability on several places. According to Art. 50 the owner of a chattel and the person under whose supervision the said chattel is shall be liable jointly and severally for the damage caused by the chattel; Art. 261, Par. 3 states that where several persons have assumed the obligation to perform together certain work, they shall be liable jointly and severally.
Joint and several liability can also come into being from a contract. For example in the case of guarantee contract the guarantor undertakes an obligation before another's creditor to be liable for the performance of the other's obligation.
In the opinion of the law scholars in Bulgaria the joint several liability can have two types of effect on an obligation. The absolute effect means that one juristic act affects all joint several debtors in the same way. For example the creditor can demand the obligation in full amount from either party. Another manifestation of this type of effect is the obligation for a joint several liability debtor who is performing to raise a general defense against the creditor.
Thirdly, the performance from one several liability debtor affects also the others and the creditor cannot refuse it without being in default. In this case the creditor will be in default towards all joint several liability debtors.
The autonomy of the different obligations undertaken by the joint several liability debtors is the reason for one juristic act that affects some of the obligations not have any effect on the others. This hypothesis is described by the term “relative effect of the joint several liability”.
The obligations of the joint several debtors might have different due dates. As a rule the default of the debtor worsens his financial situation. That is why the default of one of the joint several liability debtors does not have any harmful consequences for the others. Another rule that can describe the relative effect of the joint several liability is that when the performance becomes impossible and only one of the debtors is responsible for that, the creditor may claim from the latter full damages. The limitation period also have a relative effect because its termination or interruption against one joint and several debtor may not be enforced against the other co-debtors. Furthermore a renunciation of the limitation by one joint and several debtor may not be enforced against the other co-debtors. Another example of this effect is Art. 122, Par. 2 according to which the bringing of the action against one joint and several debtor shall not prejudice the creditor's rights with respect to the other co-debtors If one of the joint several liability debtors performs, then he has a regress claim against his co- debtors.
If the relationship between the joint several liability debtors does not provide for a different arrangement, what has been paid to the creditor must be borne equally by all joint and several debtors. It is not necessary for one joint several liability debtor to have performed in full amount to the creditor for him to have a regress claim against his co-debtors but only for him to have paid more than his share. The joint several liability debtor who is performing has to raise a general defense against the creditor and is obliged to inform his co-debtors of the performance. Otherwise he is liable before them for the damages incurred. Should any of the joint several liability prove to be insolvent, the loss is distributed pro rata among the other co-debtors, including the one who has performed.