الالتزام التضاممي - بين غياب النص القانوني وحضور التطبيق القضائي

Abstract

Civil codes grant to the creditor several instruments to ensure the fulfillment of their debt, and avoid the risk of debtor’s insolvency or intransigence. Perhaps the most effective of these means and guarantees are those that add to the debtor’s liability other financial liabilities in fulfilling the same debt, or making this fulfillment a collective one, not an individual responsibility, such as solidarity and guarantee. To achieve the same goals, new means have been created, namely proportionating between debtors. Although this term is not used in civil codes, they cover many of its applications and distinguish it from other personal guarantees of debt.

The main characteristic of the proportionate obligation is the multiplicity of the sources of debtors’ commitment to the same debt, and each of them is committed to personally fulfilling the entire debt; there is no representation here. Proportionate obligation results in a difference in the effects of the implementation of this unique system of collective responsibility for debt fulfilling. Many courts have implemented this system in every situation involving multiple debtors and multiple sources of their liability towards their creditors obligated each of them to fulfill all the entire debt. Thus, it is necessary to legally regulate the general rules of this system, not just its applications.