Joint And Several Liabities Are Provided By Law In Contract Legal Relationships

Joint and several liabilities can take legal effect through the parties’agreement or the clear provisions of the law. In people’s unconsciousunderstanding, the joint and several liabilities comes from the parties’agreement in contract law, or is based on provisions of tort law. However,the fact of legislation shows that there are a lot of joint and severalliabilities in contract legal relationships. They are created from statutoryprovisions, which widely distributed in laws, regulations, interpretations,cases and so on. However this fact has been neglected for a long time.The first paragraph brings out the issue, provides a review of thedomestic and abroad literature, and points out that there is a deficiency onthe study of joint and several liabilities in both domestic and abroadacademics. The second chapter analyzes the joint and several liabilities ina broad sense in detail: a part of the joint and several liabilities prescribedin law are of value on the legal ground, or specifically limited theliabilities to the suit for damage; also there are a part of the provisionsprescribe the joint and several liabilities repeatedly and result in a waste oflegislation and relative unbalance, or a contradiction of theories bytransferring the contractual obligations. The third chapter summarizes thecauses and the functions of the statutory joint and several liabilities. Thecauses include strict joint act and partnership; the functions includeprotecting the debtors’ interest, balancing the risks and benefits, specifyingthe norms of conduct and judgment, improving the efficiency oftransactions by fixing transaction forms. The fourth chapter is acomparative analysis of the theory on joint and several liabilities in civillaw. In perspective of the contract law theory, the break of privity ofcontract by the joint and several liabilities can be justified on the ground that it increases the number of debtors but does not violate the principle ofcompensatory damages. However, it should be limited to a reasonablerange, because although in most occasions it does not increase the burdenof the debtor, it could be beyond the expectation of the parties in somecircumstances. In terms of tort law theory, the obligation in tort law ismainly about compensation to damages, while the statutory joint andseveral liability is normally based on contracts the parties already made,and the debtor may need to discharge the obligation by completing thespecific performance, taking remedial measures and so on. However, thelegal effect of contractual obligation and tort obligation in most casesappears to be consistent. And this tiny difference is not enough to makethe tort obligation be prescribed separately. The fifth chapter analyzes thelegislation of the joint and several liabilities in obligation with multipledebtors. There is a discrepancy in the judicial application as a result of alack of general principle of obligation with multiple debtors in China’s lawof obligation and it is necessary for china to set a chapter on generalprinciples of law of obligation in future civil law code and to put thegeneral principle of obligation with multiple debtor in this chapter. Jointobligation, joint and several obligation, and several obligation should beincluded in the obligation with multiple debtors as paralleled systems. Thejoint and several claims should be paid enough attention in legislation.Also the complexity of the content of joint liabilities should be realized,which includes unreal joint and several liability, supplementary liabilityand so on. Besides, the joint obligation, joint and several obligation andseveral obligation should be generated from the provisions of law or theagreements of the parties. Where there are no such provisions oragreements, the obligation shall be assumed as several obligation.