Several debtors: when each pays a share and when one is charged the lot

It is Section Three of Chapter II of Title I of Book Four of the Civil Code of 2020, Articles 1092 to 1107. It says what happens where the same obligation has several debtors or several creditors: whether each answers for their share or whether any of them can be required to pay the whole.

Any obligation with more than one debtor or more than one creditor. The solidary regime applies only by virtue of what is expressly provided in the obligation or in the law; failing that, mancomunidad governs.

• For solidarity to exist, that the obligation or the law expressly provide it: that is the only thing that creates it under Article 1096.Verified against the official source
• In mancomunidad, claiming only the part or share corresponding to each debtor or creditor.Verified against the official source
• To claim from the co-debtors after paying, having performed in full: then each one’s share is claimed, with the interest on the advance.Verified against the official source

• The document of the obligation, because whether solidarity was agreed comes from it; without that express record — or a law imposing it — the regime is mancomunado.
• Evidence of the full payment and its amount, which grounds the claim against the co-debtors with the interest on the advance.

1. 1

   Step 1: The default regime: each one their share

   Article 1092 defines mancomunidad: each debtor is bound only to their part or share in the debt, and each creditor may demand only their part or share in the credit. And Article 1093 fills the silence: the credit or the debt is presumed divided into as many parts as there are creditors or debtors.

2. 2

   Step 2: When the debt cannot be split

   Article 1094 provides for it: if division is impossible, only the creditors’ collective acts prejudice their right, and the debt can only be made effective by proceeding against all the debtors. And it adds a rule that separates mancomunidad from solidarity: if one of the debtors turns out insolvent, the others are not bound to make up their share.

3. 3

   Step 3: Where solidarity comes from

   Article 1096 says it without leaving a gap: by virtue of what is expressly provided in the obligation or in the law, the whole performance may be demanded of each debtor, or by each creditor. Those are the two sources. And Article 1097 clarifies that solidarity may exist even though the creditors and debtors are not bound in the same way nor by the same terms and conditions.

4. 4

   Step 4: Who can be charged, and for how much

   Article 1102 is the one that weighs most in practice: the creditor may proceed against any of the solidary debtors or against all of them simultaneously, and they cannot raise the benefit of division. Claims brought against one debtor do not bar those later directed against the others, while the debt is not fully collected. And with an express limit: the judgment entered is enforceable only against the debtor or debtors sued.

5. 5

   Step 5: I paid it all: what can I claim from them

   Article 1103 orders it. Full performance by one of the solidary debtors extinguishes the obligation. The one who performs may claim from the co-debtors only each one’s share, with the interest on the advance. And if one of them cannot pay, the default through a solidary debtor’s insolvency is made up by the co-debtors pro rata to each one’s debt. Here insolvency is shared out — the opposite of mancomunidad.

6. 6

   Step 6: Paying one of several creditors

   Article 1098 allows it: the debtor may pay any of the solidary creditors, even where sued by only one. But Article 1099 sets the limit on their side: each solidary creditor may do what is useful to the others, but not what is prejudicial, and solidarity does not by itself imply that a solidary co-debtor or co-creditor represents the others.

7. 7

   Step 7: If one settles on their own

   Article 1100 reaches it: novation, set-off, remission or compromise of the debt with any of the solidary creditors, or with any of the debtors of that class, extinguishes the obligation totally or partially as to the others; and whoever carried out any of those acts, as well as whoever collects the debt, answers to the others for the share corresponding to them. Article 1101 then details how the co-debtors stand between themselves in each of the four cases, and clarifies that if the acts were limited to one debtor’s share, the others are released only as to that share.

8. 8

   Step 8: Solidarity can be let go

   Article 1105 allows it: the creditor may waive solidarity, expressly or tacitly, as to one solidary debtor or as to all. Waiver in favour of one is tacit where the creditor demands or acknowledges payment of their share in the debt without reservation. Waiving as to one does not extinguish the solidary action against the others for the remaining payment; but if the creditor consents to the division of the debt, the waiver benefits all the solidary debtors.

9. 9

   Step 9: If the performance becomes impossible

   Article 1106 separates two things. If the performance becomes impossible without the solidary debtors’ fault, the obligation is extinguished. If any of them was at fault, all are solidarily bound for the price; but the damages action arising from the fault may only be directed by the creditor against the debtor at fault. The price is shared; the damages are not.

10. 10

    Step 10: What defences each debtor may use

    Article 1107 classifies them: the solidary debtor may use against the creditor’s claims all defences deriving from the nature of the obligation and those personal to them; and of those personal to the others, only as to the part of the debt for which those others are liable.

11. 11

    Step 11: And what happens to prescription

    There are two rules and they should not be mixed. Article 1104 says that interruption of the prescription of actions in solidary obligations benefits or prejudices all creditors and debtors equally, except in non-contractual obligations where several caused one damage. And Article 1095 says that in mancomunadas obligations, and in solidary ones arising from co-causation of damage, where the creditor claims from one debtor only the part corresponding to them, prescription is not thereby interrupted as to the other co-debtors.

These rules operate between creditors and debtors; the claim against one, several or all is filed before the Court of First Instance, and the judgment is enforceable only against the debtor or debtors sued. The Code names no agency here.

• Taking solidarity for granted: it arises only from what the obligation or the law expressly provides.
• Raising the benefit of division against a solidary creditor: Article 1102 says it does not lie.
• Believing that suing one co-debtor closes the door on suing the others later: it does not, while the debt is not fully collected.
• Enforcing a judgment against a co-debtor who was not sued: it is enforceable only against those sued.
• Claiming the whole from the co-debtors after paying: only each one’s share, with the interest on the advance.
• Applying the solidary insolvency rule to mancomunidad: there the others are not bound to make up the insolvent one’s share.
• Accepting payment of one debtor’s share without reservation: that is a tacit waiver of solidarity as to them.
• Claiming damages from a co-debtor who was not at fault: all answer for the price, but damages are directed only at the one at fault.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov