Obligation In Solidum In Comparative Analytical Study

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Habib Al-Baghdadi Mohammed , Abdul Hamid Akhreef


The intertwined relations and interdependence between peoples and civilizations, made contracts an urgent necessity for the preservation and protection of rights. As well as fulfilling the obligations imposed on the contracting parties under those contracts, whether for the benefit of the creditor or the debtor alike.The principle of the obligation is that it be simple between one creditor and one debtor, and the subject of the obligation is one, so its effects are the performance of the debtor subject of the obligation to the creditor, but this is not the case in the reality of business and trade, or transactions in general. As the two parties to the obligation may be attached to another party, or other parties, and it is multilateral either on the part of the creditor, and here we are talking about the existence of several creditors and one debtor who can pay the debt to any of the creditors without the right of the other creditor to claim it. Or on the part of the debtor, and here we are talking about one creditor and multiple debtors, as whichever one leads, the debt falls from the other debtor to the creditor’s account. Solidarity between debtors or creditors was stipulated by the legislator from chapters 153 to 180 of the Moroccan Code of Obligations and Contracts, while the Libyan legislator allocated articles 266 to 289 of the Libyan Civil Code. Solidarity represents a legal status and is considered one of the strongest personal guarantees, and there is a solidarity obligation when there are two or more persons who are committed to all religion in the face of the creditor or vice versa so that it aims at the common interest[1]. As for the solidarity between creditors, which is called the positive guarantor, the Moroccan legislator organized it in chapters 153 to 163 of the Law of Obligations and Contracts. According to Chapter 154, positive solidarity is if each creditor has the right to receive the debt in full and the debtor is not obligated to pay the debt. Except once for one of them, and the obligation may be jointly between the creditors, even if the right of one of them differs from the right of the other if it is accompanied by a term or dependent on a condition, if the right of the other is now fulfilled. In this context, the Libyan legislator stipulated in Article 267, the first paragraph of the Libyan Civil Code, as follows: “If the solidarity is between the creditors, the debtor may repay the debt to any of them, unless one of them objects to that.” It is an explicit acknowledgment by the Libyan legislator of the positive solidarity between the creditors. The point is that this type of solidarity is rare in practice because its motive is few, and that negative solidarity is the common effect because it expresses an explicit expression of solidarity and a package of guarantees from debtors to religion. Therefore, solidarity between debtors is considered the strongest form of personal guarantee. Chapter 166 of the Moroccan Law of Obligations and Contracts defines negative solidarity by saying, “Solidarity is established between debtors if each of them is personally obligated to the debt in full, and then the creditor has the right to compel any of them to pay this debt in whole or in part, but he is not entitled to repay it only once. One}. As for the Libyan legislator, he discussed the solidarity of debtors in Article 271 of the Libyan Civil Code, which states: “If the solidarity is between debtors, then the fulfillment of the debt by one of them clears the liability of the others.” In addition to solidarity, there is a set of legal terms aimed at and pouring into the same human rights stream[2], and perhaps the most important of these terms is the term solidarity or the idea of solidarity obligation, which the Moroccan legislator did not expressly stipulate in the Law of Obligations and Contracts. In order to know this type of contract descriptions, we will try in this research to expose the nature of the joint obligation, then we will look at the effects produced by the joint obligation between creditors and debtors, as well as among debtors who are jointly bound among them. Taking into account the comparative legislation in this aspect..

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