Joint and several liability means that several debtors are each liable for the whole obligation. The creditor may choose whom to pursue and need not divide the claim; once one debtor pays, the others are discharged as against the creditor.
Legal basis
Article 6:6 of the Dutch Civil Code provides that obligations with several debtors are in principle owed in equal shares, unless joint and several liability follows from statute, custom or a legal act. Article 6:7 entitles the creditor to claim the whole from each of them. Article 6:10 governs recourse: internally each bears the share attributable to them, and a debtor who pays more may recover the excess from the others. Article 6:102 makes liability joint and several where two or more persons are liable for the same loss. The law also imposes it on partners in a general partnership under Article 18 of the Commercial Code and on spouses for ordinary household debts under Article 1:85 of the Civil Code.
How it works in practice
Financiers insist on joint and several liability as standard, so that they need not work out who bears what. In practice that means the most solvent debtor pays the whole and must then pursue the others. Anyone signing on this basis is well advised to record the internal apportionment in writing, because without agreement it is determined only afterwards on the facts.
Where it goes wrong
Former partners remain jointly liable on a mortgage after separation until the bank grants a release; the arrangement in the divorce covenant does not bind the bank. A second problem is recourse against a debtor with no assets, leaving the paying debtor with the entire loss. Third, the recourse claim is subject to its own limitation period with its own starting point.
Related terms
Joint liability connects to damages where several parties caused the loss, to assignment of recourse claims and to the limitation period.
Are you being pursued for the whole debt? Our civil law specialists assess your share and your recourse.
