Joint and several liability arising from a legal relationship or by law is a debt relationship in which each debtor is responsible to the creditor for the entire debt, and the creditor has the right to demand full performance of the debt from any one of the debtors. The concept of joint and several liability is regulated under Article 162 of the Turkish Code of Obligations, which states: “If each of several debtors declares that they accept responsibility for the entire debt towards the creditor, joint and several liability arises. If there is no such declaration, joint and several liability arises only in cases prescribed by law.”
As understood from the text of the article, joint and several liability provisions apply when multiple debtors declare that they accept responsibility for the entire debt towards the creditor. In such a case, the creditor may demand the full debt from any debtor they choose. The debtor who pays the full debt has the right to seek recourse against the other debtors for the amount exceeding their own share of responsibility in the internal relationship. This type of liability facilitates easier collection of the creditor’s claim while also containing provisions that maintain balance among the debtors in their internal relationship.
Joint and several liability arises either through the explicit declaration of will by the parties or, in some cases, directly by law. It especially arises in cases of tort or contracts that create joint responsibility. Therefore, each joint and several debt relationship must be evaluated separately according to the specific circumstances of the concrete case.
Sources of Joint and Several Liability
Joint and several liability can basically arise from two different sources: legal relationships or the law. Joint and several liability arising from a legal relationship stems from contractual relationships established by the parties through their free will. If the parties explicitly agree in their contract that each debtor is responsible for the entire debt, the creditor has the right to demand full payment of the debt from any one of these debtors.
Joint and several liability arising from the law, on the other hand, arises directly from legal provisions without the need for any contract. This especially covers cases of torts and damages caused by the fault of multiple persons. According to Article 61 of the Turkish Code of Obligations, if multiple persons cause damage together or if the damage results from the combined fault of several persons, these individuals are jointly and severally liable to the injured party. However, for multiple persons to be held jointly and severally liable for a damage, the damage must be a single and identical harm. Similarly, specific provisions such as the liability of an employer (Article 66 of the Turkish Code of Obligations) and the liability of a real estate owner also constitute examples of joint and several liability arising from the law.
The Creditor’s Position in Joint and Several Liability
The joint and several liability relationship is highly protective for the creditor. This is because the creditor can demand full payment of the debt from any debtor, regardless of how the debtors share responsibility among themselves. This right granted to the creditor allows them to direct the claim towards the debtor who has the ability to pay, thereby speeding up the collection process.
The debtors’ liability continues until the entire debt is paid. The liability of the debtors does not end until the damage is fully compensated. Agreements made between the debtors regarding the compensation of the damage do not bind the creditor. Therefore, when the creditor makes a claim, the debtor cannot refuse to pay on the grounds that more than their own share of the debt is being demanded. As can be seen, the creditor who demands performance has the right to decide how to proceed. They may direct their claim for part or all of the debt against all debtors, some of them, or just one.
The Internal Relationship Among Debtors and the Right of Recourse
Among joint debtors, although they are collectively responsible for the entire debt in terms of the external relationship, this situation may differ in the internal relationship. In the internal relationship, each debtor is responsible only for the portion of the debt corresponding to their own share of liability. Therefore, the debtor who pays the entire debt has the right to seek recourse from the other debtors for the amount exceeding their own share of responsibility.
This matter is explicitly regulated under Article 167 of the Turkish Code of Obligations, which states: “Unless otherwise agreed or unless the nature of the legal relationship between the debtors indicates otherwise, each debtor is responsible to the others for the payment made to the creditor in equal shares. A debtor who pays more than their share has the right to claim the excess amount from the other debtors. In this case, the debtor may only seek recourse from each debtor in proportion to their share. The amount that cannot be recovered from one debtor must be equally borne by the other debtors.”
The relevant legal provision enables the creditor to effectively collect their receivable while also allowing for a fair distribution of the burden among the debtors in terms of their internal relationship. This type of liability, which may arise either voluntarily or by law, has significant applications both in contract law and in tort law. Therefore, joint debt relationships must be evaluated and handled individually according to the specifics of each concrete case.
It should be noted that since each debt constituting the joint liability is independent of the others, the creditor’s actions against one debtor cannot produce legal consequences against the other debtors. For example, a default notice issued by the creditor will only have an effect on the debtor who was notified and will not create legal consequences for the other debtors. This reflects the principle regulated under Article 165 of the Turkish Code of Obligations, which states that the acts of one debtor towards the creditor cannot worsen the situation of the other debtors.
Similarly, the creditor cannot change the due date, amount, or scope of the debt to the detriment of the other debtors by making an agreement with one of the joint debtors, nor can the creditor file a lawsuit against one debtor and then pursue the other debtors based on the judgment obtained. However, exceptions to this rule exist if the other debtors explicitly consent to the situation or have agreements authorizing the joint debtor in this regard.
While the creditor’s actions against one debtor cannot worsen the situation of the other joint debtors, they can improve it. An example of this is when the creditor releases one of the debtors from liability. In such a case, the other debtors are relieved from the debt proportionate to the share of the released debtor in their internal relationship.
Supreme Court Decisions
“…According to Article 61 of the Turkish Code of Obligations (TCO), joint and several liability may arise from the same cause or from different causes.
…-Joint and several liability arising from multiple persons causing the same damage together:
The damage caused jointly by multiple persons is damage based on the same cause. The “same cause” or “joint cause” giving rise to joint and several liability may be due to fault, contract, or law.
…-Joint and several liability of multiple persons for the same damage due to various causes:
It is possible that multiple persons are liable for the same damage due to various causes. The different causes producing the same damage may be fault liability (tort), contract, or strict liability (law). Thus, among several tortfeasors, one may be liable for the same damage under tort law, another under contract, and another under duty of care or risk liability. For example, if a motor vehicle used by a business’s driver injures a passenger, the vehicle operator is liable under strict liability according to Article 85 of the Highway Traffic Law, the driver is liable under fault liability (tort) pursuant to Article 49 of the Turkish Code of Obligations, and the insurer is liable to compensate the damage according to the insurance contract (policy)…” (Supreme Court, 17th Civil Chamber, Case No. 2016/9059 E., Decision No. 2017/3659 K., dated 04.04.2017)
“…Again, Article 61 of the Turkish Code of Obligations No. 6098 states, ‘If multiple persons cause damage together or are responsible for the same damage due to various reasons, the provisions regarding joint and several liability shall apply to them,’ emphasizing that multiple persons can be held liable for the damage based on the same cause or various causes (a parallel provision also exists in Article 51 of the former Code of Obligations No. 818). This situation arises when the conditions for liability or any compensation obligation occur in two or more persons individually. In such cases, the rules of joint and several liability will apply to the responsible parties. Joint and several liability is a type of liability arising from law, and the right holder who claims from one of the jointly liable parties does not need to declare that their claim is based on joint and several liability with respect to all concerned parties…” (Supreme Court, 17th Civil Chamber, Case No. 2016/4586 E., Decision No. 2019/35 K., dated 14.01.2019)
“…The right of recourse that the internal relationship grants from the “damaged party satisfied by the liable party” is defined as the “right to claim compensation against the other liable parties who are jointly liable by law, to the extent that one of these persons has fully or partially satisfied the creditor-damaged party and has paid more than their own share, to recover the reduction in their assets caused by fulfilling another’s debt.” The commencement of the internal relationship does not always require that the external relationship has completely ended, in other words, that the damaged party has been fully satisfied. Sometimes the internal and external relationships may continue simultaneously. If the damaged party has been partially satisfied by one of the liable parties, and that liable party’s partial payment exceeds their share in the internal relationship, they may recourse against the other liable parties proportionally to the excess. The internal relationship among the liable parties who may be subject to recourse is not one of joint and several liability but of partial liability…” (Supreme Court, 17th Civil Chamber, Case No. 2014/10654 E., Decision No. 2016/4964 K., dated 19.04.2016)
Lawyer Gökhan AKGÜL & Lawyer Yasemin ERAK
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