Solidarity of debtors

Solidarity of debtors – essence of the institution

The solidarity of debtors is simply a feature of a multi-entity liability. At least 1 of the parties is represented by entities that have a peculiar legal bond. Article 366 of the KC, which mostly characterises the phenomenon of the solidarity of debtors, shows that the legal link between the joint debtors is that the creditor has the power to require the satisfaction of all debtors together, from respective of them or from each of them to the full satisfaction of the creditor, and the existence of the power of each of the joint debtors to satisfy the creditor fully, resulting in the dismissal of all the debtors (yes: the judgement of the territory Court of advanced Mazowieckie, Ref. Act I C 447/16).

A fundamental feature of passive solidarity is so that, despite the multiplicity of debtors, each of them is subject to the work to complete and even if the benefit is divisible (e.g. a benefit expressed in money) does not consequence in a division of the work into parts and the full benefit is due to the creditor from each debtor.

Solidarity of debtors – intent and importance of institutions

It should be noted that the legal structure of solidarity is based on the intention to increase the certainty of the satisfaction of the creditor. It should besides be added that the specificity of the solidarity obligations is that, despite the multiplicity of the entities, there is only 1 benefit and the powers or obligations of the participants concern this single benefit in its entirety. With passive solidarity (solidarity of debtors) the creditor's assurance in the satisfaction of his claim is greater erstwhile there are respective debtors and each of them is liable for the full debt (yes: A. Pyrzyńska, (in:) civilian Code. Comment. Volume III. Commitments – General, under A. Kidyby, Lex 2010).

The solidarity of the debtors so strengthens the position of the creditor as it facilitates the execution of his claims and creates a strong safety through the ownership of respective debtors (A. Rzepecka-Gil, civilian Code). Comment. Commitments – General, Lex/el. 2011).

Inability to presume solidarity

As provided for in Article 369 k.c. commitment is consolidated where this is the consequence of a bill or legal act. The existence of solidarity is so determined by either the bill or the will of the parties to the legal act. Under this provision, solidarity cannot be presumed.

The contractual clause reserving the solidarity of debtors must either contain the terms "solidarity", "solidarity", or mention to the provisions of Article 366 kc. At the same time, solidarity can be enshrined without utilizing that term, not referring to the content of Article 366 kc or 367 kc, but describing the characteristics of the solidarity commitment.

The above means that, in the case of passive solidarity, the parties should indicate in the agreement that each debtor is obliged to pay the full benefit, the creditor may request the full benefit of 1 or more (all) debtors, and the fulfilment of the benefit by 1 debtor relieves the others, as all debtors stay obliged until the full satisfaction of the creditor (so M. Pyziak-Szafnicka (in:) Private law system, p. 293).

It is so of decisive importance to state that each of the debtors is liable for the full of the debt and that the creditor has the right to choose which of the debtors and in what part will be satisfied (yes: judgement of the Wrocław territory Court of 10 May 2013, Act I C 963/11).

Similarly, the ultimate Court ruled in its judgement of 22 June 1998, Case I CKN 757/97, stating that solidarity could not be presumed and that only a provision of the law or a contractual reservation could be a source.

The emergence of solidarity implicitly

The solidarity of the undertaking should consequence from a reservation covered by the legal act. In accordance with the position adopted in doctrine and jurisprudence, solidarity may consequence from an implicit provision covered by the legal act (yes: A. Ohanowicz, Commitments p. 111; M. Sychowicz, in: Bieniek, Commentary. Commitments, 2011, Vol. I, Art. 369, Nb 4; Z. Masłowski, in: Resich, Commentary, 1972, Vol. II, p. 898; W. Dubis, in: Gniewek, Machnikowski, Commentary, 2016, Art. 369, Nb 2).

This may be the case, for example, in the case of the conclusion of an oral contract, where, for example, the creditor, erstwhile negotiating with a number of future debtors, is given grounds to presume that they will be obliged to pay him all together and individually.

In particular, the fact that the debtors here understood their liability as solid may be that they did not disclose to the creditors their interior arrangements and the remuneration was paid in various amounts by respective debtors alternatively than 1 (similar to the judgement of the territory Court of advanced Mazowieckie of 7 June 2017, Act I C 447/16).

Solidarity of debtors and differences in the content of obligations of individual debtors

Article 368 k.c. lays down the rule that a commitment may be solid, even if each debtor is obliged differently.

This means that, from the very beginning of the joint and respective commitments, there may be differences in the content of the obligations of the individual debtors, whereby the work of the individual joint and respective debtors may be different in relation to:

• the amount of benefits – then only benefits up to the lowest amount are solidarity and the remaining part of the debt is not solidarity; in another words: solidarity only reaches the amount of the lowest debt;
• other time, place and manner of fulfilment of the benefit, payment of instalments; reservation of the time limit, condition, or absence of specified a reservation;
• the merits (or not) of certain charges against the creditor;
• another limitation period for claims against joint and respective debtors;
• other time and reasons for the establishment of the undertaking;
• the legal basis for the benefit to which individual debtors are required, e.g. pecuniary and contractual liability or liability based on different principles: guilt, equity, risk;
• Conversion of commitments.

(yes: Elbląg territory Court judgement of 11 September 2013, Act No I Ca 188/13)

The solidarity of debtors was created by joint commitment

Pursuant to Article 370 kc, if respective persons have entered into an work concerning their common property, they shall be jointly and severally required unless otherwise agreed.

It should be pointed out that it is uncontested in doctrine and jurisprudence that a number of persons should be understood to have done a legal action (one-sided or bilaterally binding) by at least 2 persons (although not necessarily simultaneous) resulting in a joint benefit work (such as A. G., civilian Code). Comment. Commitments — general part”, LEX/el. 2011, thesis 2 to Article 370; so besides in the judgement of the SA of Łódź of 27 August 2015, I ACa 182/15, non-publ.). However, the origin of the common work must be legal action and not the law.

It follows that Article 370 k.c. cannot be applied to the work of persons, even if this work relates to common property erstwhile it is not contracted by those persons, but falls under the law.

Principle of joint debtors not harming co-debtors

The effect of legal events relating to 1 of the joint debtors on the legal position of the another debtors is standardised in Article 371 k.c. that acts and omissions of 1 of the joint debtors shall not harm the co-debtors. Therefore, an event which is covered by the solidarity of debtors cannot be classified as conduct under Article 371 k.c., even if the consequence is simply a deterioration in the legal situation of the debtors, for example by updating certain claims of the creditor.

Therefore, erstwhile establishing the order of conduct to which this provision refers, it is essential to take into account in each case, what benefit is covered by the solidarity of debtors. First of all, the rule of not harming co-debtors by a joint debtor means that the behaviour of that debtor cannot increase the solidarity of the another co-debtors.

The further emanation of the rule that actions and omissions of 1 of the joint debtors cannot harm the co-debtors is Article 373 k.c., which states that the creditor's waiver or waiver of solidarity with 1 of the joint debtors has no effect on the co-debtors. According to these rules, even acts beneficial to 1 of the joint debtors cannot have effect on another debtors if they are not favourable to their situation (e.g. by extending the duration of the work to the creditor without the participation of the another debtors).

The provision of Article 371 k.c. expresses the rule that, during the duration of the bond relationship, a solid debtor may not make the legal situation of the another debtors worse by acting or failing, with the request of not compromising the legal position of the co-debtors affecting both their situation vis-à-vis the creditor and the another debtors in the regression relation between them.

Consequences of the conduct of the joint and respective debtor harming co-debtors

The effect of the behaviour of the debtor, prohibited by Article 371 of the Code, is that they have an effect solely on the legal situation of the debtor who has committed those behaviours and do not alter the legal position of the another debtors. In another words, the negative consequences of the debtor's conduct affect only him, but they do not affect another debtors. Hence, the limited effectiveness of the behaviours referred to in Article 371 k.c. is indicated, as they only affect the position of the debtor who executed them. It is so assumed that the co-debtors correspond only to the degree to which they would have responded if the behaviour of the debtor leading to a deterioration of their legal position had not occurred.

Therefore, in the case of a joint debtor with a creditor setting out the terms of the contract more burdensome than before, the fresh little favourable terms of the contract apply to the creditor only to the debtor who has concluded the agreement, while the another debtors are inactive obliged to the creditor under the more favourable conditions.

Similarly, the designation of a debt by 1 of the debtors will be effective only in relation to the debtor who made the designation alternatively than to the another debtors (yes: judgement of the Elbląg territory Court of 11 September 2013, Ref. Act I Ca 188/13).

Regressive claim between joint and respective debtors

According to Article 376 § 1 k.c., if 1 of the joint debtors has fulfilled the benefit, the content of the existing relation between the debtors determines whether and in which parts it may request a return from the debtors, where nothing else results from the content of the relationship, the debtor who has fulfilled the benefit may request a return in equal parts.

In defence of claims against regress, the co-debt may cover itself with allegations arising both from the relation between the creditor and the creditor (personal and joint charges to the joint debtors) and from the relation between him and the joint and respective debtor who has fulfilled the benefit.

Release of the joint and respective debtor from the creditor's debt and regression between the joint and respective debtors

In particular, the doctrine indicates that the protection relating to the relation between debtors can be illustrated by mention to the event of an exemption from the debt of 1 of the joint debtors; this debtor will become free from the creditor (for the benefit of the debtor), However, its work to reimburse the co-debtors with an adequate share of the benefit they fulfil to the creditor remains intact (the same applies to cases where the creditor has been satisfied by the service in place of completion, deduction and submission of the subject substance to a judicial deposit (yes: ultimate Court judgement of 9 February 2000, No. III CKN 599/98).

The right of the creditor to identify the joint and respective debtor from whom he will require the performance of the benefit

It should be stressed that the right to choose the debtor in the event of passive solidarity belongs exclusively to the creditor (see judgement of the SA in Katowice of 28 February 1992, I Acr 42/92, OSA 1993, of 4, item 23).

It is the creditor who decides who, in what size and how he wants to satisfy himself.

The right of the creditor to choose the debtor from whom he may require the performance of the benefit in full or in part shall not be subject to any restriction. This choice cannot be effectively contested by any of the debtors. It is besides not limited in the event that the creditor makes usage of the judicial remedy and enforcement procedure (the judgement of the Torun territory Court of 26 February 2016, Act No X C 1777/15).

Thus, the creditor may prosecute his claims with a single suit against all or only certain debtors or separate lawsuits against each (some) of them (cf. judgement of the ultimate Court of 5 November 1966, II CR 387/66), and may order the execution at the same time against all debtors, respective of them or 1 of them.

At any time, the creditor may change his choice and revoke the suit against certain debtors, apply against another debtors with separate actions, sue the unclaimed debtors (Article 194(3) of the Code), file a motion to waive execution against certain debtors, apply for execution against another debtors, etc. (Comment on Article 366 k.c. in: civilian Code. Comment. Tom III. General. pod. ed. J. Gudowski, WKP, 2018).

Obligation of the creditor to accept benefits from any of the joint debtors

The creditor is obliged to accept a benefit from any of the debtors even if he has requested the satisfaction of another debtor. The rights and obligations of the parties to the joint and respective obligations shall proceed until the full satisfaction of the creditor. In the event of partial satisfaction, they proceed to be only in respect of the unmet part of the creditor's claim (yes: judgement of the Warsaw territory Court of 24 May 2018, Ref. act XXIV C 886/17).

Prosecutions of joint and respective debtors

As is apparent from Article 375(1) k.c., the joint debtor may defend himself against the creditor in person, as well as those which, by reason of the nature or content of the obligation, are common to all debtors. According to paragraph 2 of the said provision, a judgement has been given in favour of 1 of the joint debtors to release the others if it takes account of the allegations which are common to them.

The charges jointly held by all joint and respective debtors vis-à-vis the creditor surely include, inter alia, the claim that the creditor's claim is not due to claims against him, since it is assumed that the situation in which the joint and respective debtor was held cannot be affected by claims against him.

Solidarity of debtors and kind of procedural participation

Co-participation justified by a joint and respective commitment is not a essential co-participation, since specified co-participation occurs erstwhile legal substantive standards legitimise entities only to jointly prosecute claims or jointly defend their rights on the defendant's side.

In accordance with Article 366 k.c., it is the essence of passive solidarity that the creditor may get all or part of the benefit from all debtors together, from respective of them or from each individual. It is so established that solidarity of commitment does not make the essential participation of debtors. These observations shall besides stay valid with respect to joint participation (yes: judgement of the territory Court of Łódź of 27 August 2015, Act III Ca 696/15).

Solidarity of debtors and improper solidarity (in solidum)

The solidarity of debtors should be distinguished from the alleged incorrect solidarity (in solidum) where the creditor may claim from respective persons, but on the basis of the separate legal relation between him and the individual person, and where 1 of the debtors fulfils the benefit, the work expires with the another debtors.

In practice, the effects of solidarity and liability in solidum are similar: the injured individual may make good the harm he or she has chosen, and the compensation of that entity to his or her work of compensation results in the waiver of the work in which the another individual participates. However, in terms of design, there is simply a fundamental difference, which is that, in the case of solidarity, there is 1 internally complex bond relation characterised by a multiplicity of debtors, but on the basis of liability in solidum, there are two, in rule independent, commitments, linked only by the commonality of the nonsubjective to be achieved (repair of damage).

Compensation and solidarity of debtors

Given the nature of the solidarity of the debtors and the fact that it is reserved primarily in the interests of the creditor, it should be assumed that a claim for compensation resulting from an improper performance of the contract is besides subject to solidarity, even if the failure to execute the undertaking is due to circumstances for which only 1 of the joint debtors is responsible.

The compensation benefit replaces or complements the primary benefit, so there is no reason to exclude compensation from the scope of solidarity.

The consideration of which of the joint debtors and to what degree it has caused the default or incorrect execution of the undertaking only takes place as part of the regression claims does not mention to the relation between the creditor and the joint and respective debtors. The other view would lead to a situation where the protection of the creditor, despite a reservation of solidarity, would in many cases be illusory (yes: judgement of the Court of Appeal in Katowice of 19 December 2014, Ref. Act I ACa 762/14).

Joint commitment by spouses and application of the rules on the solidarity of debtors

Article 370 of the Code applies to spouses as debtors, providing, in the event of no another agreement, for the joint liability of persons who have entered into an work concerning their common property. There is no reason to believe that the provision of Article 370 k.c. relating to common property would only apply to co-owners entitled to fractional parts of the common property, but did not apply to joint ownership and obligations entered into by spouses regarding their common property to which the provisions on joint ownership apply.

However, not in all cases of joint commitment by spouses, their work is solidarity. The deficiency of clear regulation by the parties on the liability of spouses in a joint commitment does not mean that their work is solidarity. For solidarity to exist, a legal or economical link between a commitment and common property is necessary. specified a relation may arise from the content of a contract or circumstances.

The solidarity of spouses may besides be established on the basis of Article 30(1) k.r.o. if the commitment was entered into in cases arising from the satisfaction of the average needs of the family.

Solid work of spouses for obligations in matters of average household needs

Pursuant to Article 30. § 1 k.r.o., both spouses are jointly and severally liable for the commitments made by 1 of them in matters arising out of the average needs of the family. For crucial reasons, the court may, at the request of 1 of the spouses, decide that only the spouse who has enlisted them is liable for these obligations. This provision may be repealed if circumstances change. The exclusion of joint liability by 3rd parties shall be effective if it was known to them.

Solidarity of debtors from unauthorised acts

Article 441 k.c. indicates that if respective persons are liable for harm caused by an unlawful act, their work shall be joint and several. On the another hand, if the harm was the consequence of an act or omission of respective persons, the individual who repaired the harm may require the another part to be reimbursed according to the circumstances, in peculiar the responsibility of the individual afraid and the degree to which it contributed to the damage.

Whoever fixed the harm he is liable for despite his deficiency of guilt has a return claim to the perpetrator if the harm was caused by the perpetrator.

Solidarity of heirs

Pursuant to Article 1034 k.c., until the inheritance department, the heirs shall be jointly liable for the debts. This liability resulting from the lex specialis which is the abovementioned provision is the same liability as that expressed in Article 366(1) k.c.

Insurance solidarity of debtors

In the area of insurance with the solidarity of debtors, we are besides dealing with the sale of the subject substance of insurance – the seller is jointly and severally liable to the buyer for the payment of the contribution due for the time until the subject substance is transferred to the purchaser (Article 823 §2 k.c.). However, no provision creates solidarity on the part of creditors in the event of payment of compensation for harm to their vehicle (yes: judgement of the Szczecin territory Court of 5 September 2013, Act II Ca 41/13).

No joint and respective liability of the property owner for the debt of the individual who concluded the sale and supply contract for electricity

District Court for Wrocław in judgement of 21 February 2013, Act No IX Cupr 990/12 He held that the claimant’s claim that the suspect was liable for the debt due to the fact that he owned the energy supply property was incorrect and found no justification. The individual liable in this respect is the 1 who concluded the sale and supply of electricity to the property in question. It does not substance that another individual owned the property at the time.

The relation of ownership cannot lead to solidarity in the supply of energy besides due to the fact that the provisions of the Energy Law do not supply for the solidarity of the commitment in this respect.

Solidarity of debtors resulting from the warrant agreement

By means of the warrant agreement, the guarantor undertakes to comply with the creditor’s work in case the debtor fails to comply with that work (Article 876(1) k.c.). The scope of the guarantor’s work shall be determined by the degree of each debtor’s work (Article 879(1) k.c.). At the same time, it appears from the wording of Article 881 k.c. that, in the absence of a different reservation, the guarantor is liable as a co-debtor, and thus the rule of joint and respective liability of the guarantor and the chief debtor was adopted by that provision.

The liability of the guarantor as the chief debtor is that, together with the arrival of the debt, the creditor may meet the benefit, according to his choice, either from the debtor or from the guarantor, together or from each of them separately. The performance of the guarantor shall exempt the chief debtor from the work to supply to the creditor. The guarantor in specified a situation, on the another hand, becomes entitled to the satisfaction of the creditor up to the amount of the benefit, obtaining a claim from the chief debtor for the performance of the benefit, unless otherwise arising from the relation between the creditor and the chief debtor or from the warrant contract (Article 518 §1.1 k.c.) (yes: judgement of the territory Court of Zambrowa of 23 September 2014, Ref. Act I C 240/14).

This rule of joint liability applies besides to those situations where the warrant has been granted by respective entities. However, it is not crucial for this kind of liability to arise whether the warrant is simply a joint warrant or a warrant was made by each individual entity. In the absence of a different agreement, the legal situation of the co-legislators is akin to that of 1 person, provided that there is inactive a solidarity between the co-legislators.

If nothing else is apparent from the agreement, the guarantor who paid the debt in full or in part with the prevailing burden shall be entitled to recourse to the another guarantors in accordance with the provisions on solidarity (Article 376 §1 k.c.), regardless of the regression in relation to the chief debtor, comprising all the claims satisfied under Article 518 §1 k.c. for the entry into the satisfaction of the creditor (yes: ultimate Court judgement of 22 December 1997, act No. III of CCU 87/97, publ. Prok. and Pr. (contribution) 1998, No. 6, pp. 26 – LEX No. 33242).

This view was besides shared by the ultimate Court in its judgement of 26 August 1969 (Event II CR 429/69, publ. OSNC 1970/5/93 – LEX No 1007), according to which, in the absence of a different agreement, the liability of respective guarantors is akin to that of joint debtors, and so the relation between guarantors is regulated by the provisions on solidarity. In the case of specified a guarantor who has paid the debt, the right to regress in accordance with the rules on solidarity is conferred on the another guarantors (Article 376 k.c.).

Nature of the work on co-operatives to share ownership of premises to pay operating charges

Article 4(1) and (1) ¹ The Housing Cooperatives Act results in an work to pay operating fees by persons who have a cooperative property right to the premises – whether or not they are members of the cooperative. However, no provision of that law states that their obligations are solid. Article 4(6) of the Act clearly states that the solidarity node occurs only between adult residents of permanent residence and members of cooperatives and non-members of persons entitled to property rights.

According to that provision, the essential condition for solidarity to be established between persons residing in the premises and persons who are entitled to the premises is their common residence, as clearly indicated by the legislator's usage of the word "adults permanently with them (i.e. members of cooperatives or non-members) residing in the premises."

It is so clear that, if 1 co-author resides in a given premises and the another does not reside there, it is not possible to mention to the situation provided for in Article 4(6) of the Act, when, for the creation of a solidarity node, the another co-authored must live there together with the individual whose right to the premises is due, due to the fact that only then can it be described as ‘permanent with her (a individual entitled to her) residing in the premises’.

In view of the above, it must be concluded in the absence of joint residence between the co-authors that the work under Article 4(1) and Article 4(1) must be fulfilled. ¹ is not solidarity. In this situation, due to the unquestionable divisibility of the resulting benefit obligation, Article 379 § 1 k.c. applies in the context of the case, according to which, if there are respective debtors, and the benefit is divisible, the debt is divided into as many independent as the debtors, those parts being equal if there is nothing different from the circumstances (yes: judgement of the territory Court of Łódź of 5 May 2016, Act III Ca 501/16).

It should besides be pointed out that a different state may be erstwhile the debtors of a cooperative property right to a dwelling are heirs.

Solidarity of debtors under the Public Procurement Law

If the parties have joined a contract concluded under the award procedure, the public procurement law will be regulated. Pursuant to Article 23(1) of the EC Treaty, economical operators may jointly apply for contracts, but in specified a situation, economical operators shall be jointly liable for the performance of the contract, as provided for in Article 141 of the EC Treaty.

Solidarity of debtors and bankruptcy or liquidation of 1 of the joint debtors

As a general rule, the declaration of bankruptcy of 1 of the joint debtors (in utmost circumstances besides its liquidation) does not affect the responsibilities of the remaining or another joint debtors. The creditor shall have the right to search satisfaction from the another debtors corresponding jointly and severally until it is satisfied.

In addition, it is argued in the literature that the solidarity of debtors is an additional safeguard of the interests of the creditor, as it increases the likelihood that his interests will be adequately met in the form of performance of the contract or, in the event of failure or improper execution, in the form of compensation for the harm incurred (yes: judgement of the Lublin Court of Appeal of 18 October 2016), Act mention I A Ca 189/16).

Failure to indicate in the implementing title the joint and respective liability of debtors

The specified failure to indicate in the implementing title the liability of debtors on a joint and respective basis, or in solidum, does not prejudge the request to deprive the enforceable title of enforceability. It follows from no provision of law that specified a mention to the rule of liability is required in the implementing title, and that, in view of the construction of liability in solidum, as well as the joint and respective liability, only the execution of an work by 1 of the debtors leads to the expiry of the work and may be the basis for depriving another debtor of the enforceable right in so far as the work has expired (yes: judgement of the Court of Appeal in Łódź of 22 June 2018, Ref. I AGa 181/18).

Any enforcement title or another act to which a feasibility clause may be granted should only include the exact indication of the creditor, debtor and the benefits to be fulfilled. besides in the optional components of the enforcement title is not mentioned the kind of liability of debtors.

The failure in the implementing titles to hold a reservation that debtors respond in specified a way that the fulfilment of the benefit by 1 of them relieves the other, while until the full satisfaction of the plaintiff both defendants stay obliged, does not constitute an attitude of opposition, since it is not an event referred to in Article 840(1)(1) of the Code.

In the literature of the subject and in the judicature of the ultimate Court, the word ‘event’ is understood to belong to the field of substantive law. This means that ‘events’ within the meaning of that provision are only events underlying the benefit arising from the work of the debtor covered by the enforcement title or, in the case of Articles 786, 788, 791 of the Code of enforceability. The enforcement title can so be combated by this action, citing events which took place prior to the establishment of the enforcement title as well as events which occurred between the establishment of the enforcement title and the granting of a feasibility clause. (cf. ultimate Court resolution of 17 April 1985, III CZP 14/85, OSNC 1985/12/192, ultimate Court judgement of 29 June 2006, IV CSK 24/06).

The ultimate Court, in its judgement of 20 May 1969, ref. Act II CR 139/69, stated that in the operative part of the judgement judging the charge on 1 or more defendants who are jointly and severally liable to another person, it is permissible to make mention to solidarity only if, in relation to that person, a final judgement has already been passed on that person. In the absence of specified a mention, there could be a fear – with the existence of respective execution titles – that, contrary to the essence of solidarity, the same debt would be paid respective times.

However, the inclusion in the implementing title of the rule of liability surely does not lead to the performance of the undertaking and cannot so be the basis for depriving the enforceable title of enforceability.