Solidary Obligations

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Partners should not be solidary liable to third persons.

Personally, the nature of solidary obligation is unfair for the part of the other partner debtors. By holding only some of the other partner debtors liable to fulfill an entire liability is burdensome for their part especially if they know that the other partner debtors will not pay for the liability that they have also incurred, since they are all under one partnership entity. It is really practicable to hold only some of the partner liable for the fulfillment of an entire obligation of a partnership since all of them are part of that single juridical entity. But to put the burden to only some is just unreasonable to those who will have to carry all the liability.

All partners operate under one partnership name. Moreover, a partnership is a separate juridical entity as aforementioned thus all business transactions of all partners are considered transactions of that entire partnership. Likewise, liabilities incurred by all partners operating under that one firm name should all be jointly liable for compliance. The reason is the "oneness" of the nature of that one firm name under which all the partners have agreed to operate upon. Therefore, it is just practicable to say that as one firm or one partnership, all partners shall jointly carry the liability of that one firm or one partnership, not just some or all, as solidary partners do. Poch, Sieg and Godfrey would like to be partners for a security guard firm. They would like to register the firm’s name to be “PSG Security Agency.” That firm is a single partnership firm under which Poch, Sieg and Godfrey are all partners. Practicably, all three should carry jointly the liability that their one partnership firm has incurred since they all agreed upon that they will work under one partnership name and that is “PSG Security Agency.”

If one partner engages into a business transaction, it is already assumed that the entire partnership has notice to or knowledge of that transaction regardless whether there is consent made. All partners are agents of that partnership likewise as agents of that partnership, they should all be held liable to any liability that has arisen from that business transaction. The knowledge of that acting partner is the knowledge of that partnership likewise the liability of that acting partner should be the liability of the partnership, including all partners therein. Equal compliance of all partners are demanded except of is done in bad faith. If Migo is a partner of the Mike, Mark and Migo Swimming Apparel, he can engage to any business transaction of the same nature as his business regardless of the consent of Mark and Mike. This assumes that Mike and Mark has notice to or knowledge of such business transaction since they are partners in one partnership. Consequently, any liability that the business transactions of Migo is already assumed to be of knowledge of the other two partners thereby it is just practicable to say that they should jointly share from the fulfillment of the liability.

Solidary liability is not presumed. According to law practiced in our country, the side mostly in burden is the side mostly favored by law. In this case, a debtor under solidary liability would have increased liability for their part. On the creditors side, their rights would have increased if solidary liability is to be implemented. Therefore, according to the law, the presumption where there are two or more persons in the same obligation is a joint. Likewise, if there are two or more partners answerable for a single liability incurred by the partnership, the presumption is that the liability should be joint and not solidary. The only time a partnership should engage in a solidary transaction is when the contract clearly stipulates its solidarity. But unless expressly stipulated, the assumption is that joint liability is practiced.

Solidary partners can even escape the the liability. In cases where there is the involvement of creditors, solidary partners can be defended for the liability, completely or partially. Defense 1 can be derived from the nature of the obligation. Patrick and John are solidary liable to Jude for Php 100,000 for their partnership’s initial capital outlay. The entire debt of the partners was paid by Nobuyuki. Despite the fact that Jude would want to file an action against Patrick since he is solidary liable for the debt, he can not do so since Patrick can just say that the payment has already been made thereby this extinguishes the liability of both Patrick and John to Jude. But Nobuyuki can go after Patrick or John but if Nobuyuki would claim the liability after the expiration of that obligation, Nobuyuki does not have a right to demand to Patrick nor to John the liability. Defense 2 would be personal to the debtor sued. Mikee and Bianca owe Php 10,000 to Anneje for the establishment of their accounting partnership firm. If Anneje would go after Bianca, Bianca can just say that she’s insane for the entire duration of the obligation. If Anneje goes after Mikee but it was later found out that Mikee is a minor and minors cannot engage into obligations of contracts, Mikee can just say that she’s a minor. When these happen, Anneje can no longer recover the debts. Defense 3 can be personal to the other solidary debtors. If there is no defense of insanity or non-fulfillment of the suspensive condition, the solidary debtor can still avail himself only with regards to that part of the debt from which another solidary partner is liable. This may not be complete defense but the partial defense will lessen the liability of the solidary partners. If the partners were to be initially jointly liable to third persons, defense stipulations like these that can be derived from the law, will be avoided. This in turn make all partners of such partnerships jointly liable – all of them having equal liability for the fulfillment of the obligation.

Solidary partners can be beneficial for the partnership. Liabilities can be paid to creditors even if not all can pay thus preserving the partnership's credibility and making the lives of the creditors easier. But in essence, the mere fact that you're partners under one partnership makes solidary liabilities unfair for some partners. The partnership, including all partners, enjoyed from the benefits from which the liabilities have been derived upon, so it is just practicable to consider that the fulfillment of such payment of liabilities shall not just be solidarily performed. In addition, solidary partners will just use its nature to get away from a liability by saying that he is incapable of paying for the obligation. In order to eliminate these complications, partners should never be solidary liable to what the partnership