When there is solidarity in an obligation

The Undertaking or contract to secure a loan agreement uses the word “sureties” althroughout the document in describing the parties. It is further contended that the principal objective of the parties in executing the Undertaking cannot be attained unless they are solidarily liable “because the total loan obligation can not be paid or settled to free or release the Obligors if one or any of the Sureties default from their obligation in the Undertaking.”

The contention is not correct. In case there is a concurrence of two or more creditors or of two or more debtors in one and the same obligation, Article 1207 of the Civil Code states that among them, there is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. Article 1210 supplies further caution against the broad interpretation of solidarity by providing: “The indivisibility of an obligation does not necessarily give rise to solidarity. Nor does solidarity of itself imply indivisibility.”

These Civil Code provisions establish that in case of concurrence of two or more creditors or of two or more debtors in one and the same obligation, and in the absence of express and indubitable terms characterizing the obligation as solidary, the presumption is that the obligation is only joint. It thus becomes incumbent upon the party alleging that the obligation is indeed solidary in character to prove such fact with a preponderance of evidence.

The Undertaking does not contain any express stipulation that the parties agreed “to bind themselves jointly and severally” in their obligations, or any such terms to that effect. hence, such obligation established in the Undertaking is presumed only to be joint. (Escaño, et al. v. Ortigas, Jr., G.R. No. 151953, June 29, 2007, Tinga, J).