Official Comments
 Article #  

 
11.1.9
(Apportionment among joint and several obligors)

As among themselves, joint and several obligors are bound in equal shares, unless the circumstances indicate otherwise.


 
Official Comment
 Articles 11.1.9 to 11.1.13 of this Section deal with contributory claims. An obligor who has performed the obligation in favour of the obligee has a claim against the other joint and several obligors to recuperate their respective shares.
The first issue is to determine these respective shares. As a default rule, Article 11.1.9 states that these shares are equal.

Illustration

1. Companies A and B have borrowed EUR 10,000,000 from Bank X to finance the acquisition of stock in another company. In principle, A’s and B’s shares in the final allocation will be EUR 5,000,000 each.

However, circumstances can indicate otherwise, i.e. that the shares are unequal. This will often result from the contractual arrangements between the co-obligors.

Illustration

2. The facts are the same as in Illustration 1, except that A and B have agreed that their respective participations in the acquisition would be 75% and 25%. There is a presumption that these percentages will also govern the final allocation.

The circumstances may indicate that some obligors are ultimately to bear the whole amount of the obligation. This is the case when a party agrees to be bound as joint and several obligor not because of its own interest in the operation, but to serve as guarantor for the other (“main”) obligor (see Comment 3 on Article 11.1.2).

Illustration

3. Company A applies for a loan of EUR 10,000,000 from bank X. The loan is granted on the condition that company B intervene as joint and several obligor. As between the two companies, it is understood that B only serves as a guarantor. The circumstances indicate that the shares in the final allocation should be 100 % for A and 0 % for B.