Joint and several liability means that two or more people are are liable for the loss suffered by another person.
Joint and several liability may arise under:
- contract law as a result of a contractual commitment, or
- under tort law as a result of commission of a tort, by cooperating with others to commit the tort.
The overall aim is for the innocent party to recover judgment debts and enforce court orders against all those responsible for the failure to perform the contract, rather than just one or some of them.
Joint and several liability may be imposed by a joint and several liability clause.
If that is the case, each contracting party is liable on the obligation to pay money or deliver on the promise stated in the contract, which they agreed to accept (by signing the contract). They are jointly (or paraphrase to "together") liable to perform the obligations stated in the contract.
- a debt due, or
In contract law:
- joint liability means that more than one person has the obligation to perform the same act.
The benefits of joint liability include the case where one of the persons required to perform the contract suffers from a legal disability (such as bankruptcy). There is another contracting party bound to perform the obligation.
- several liability means that two or more people have standalone obligations to perform the same promise.
Example: Joint Liability
A and B promise to pay £100 to C.
A has an obligation to pay C £100, as does B.
Suppose A pays the entire amount. B's obligation to pay is discharged.
It's a joint obligation which to perform the promise, which gives rise to joint liability if the payment is not made by either of them.
Example: Several Liability
It is a different situation if in a contract between A, B and C:
- A promises to pay C £100, and
- B promises to pay C £80.
They are separate - several - obligations to pay.
Each of A and B has their own individual liability.
It's several liability.
The total debt to C is cumulative (£180), but two different people are required to pay different sums.
A is not liable for B's debt to C, and B is not liable for A's debt to C.
(The several obligations of A and B to pay C could also arise under different contracts. It doesn't have to be the same contract)
Example: Joint and Several Liability
Following on from the paragraph immediately above...
Suppose A and B also promise to be jointly and severally liable to C for one another's debt.
In this case, A and B are both (jointly and severally) liable to C for a total of £180.
Either A or B is able to pay some of the debt. Once the total is paid, both A and B are discharged.
If A and B make unequal contributions to the debt, they entitled to make a claim for contribution to recover the difference between payments.
So, if A paid C £100, and B paid C £80, A would be entitled to recover £20 from B to equalise the payments inter se (between themselves)
There's a more sophisticated example of how joint and several liability can arise from a common design.
The creditor in these cases where more than one person is jointly and severally liable tends to sue all of those in default at once. The creditor has multiple judgment debtors to choose from to recover the judgment debt.
Suing multiple debtors increases the pool of assets against which the judgment debt may be recovered.
That will be the totality of the value of the assets personally owned by all of the judgment debtors.
The law permits creditors to pick and choose their judgment debtors for the purposes of enforcement.
There is no compulsion or requirement for the creditor to choose one or the other, or some and not others.
If a judgment creditor is not successful in recovering some or all of the judgment against one of the judgment debtors, they are able to move on the next judgment debtor.
The judgment debtors have rights between themselves. For example, if one judgment debtor pays the whole debt, it is entitled to recover a proportion from the other (jointly and severally liable) debtors.
Torts that attract joint and several liability include:
- passing off
- infringement of intellectual property rights, that is copyright, designs, trademarks, and patents
- malicious falsehood
- trespass to goods
- tort of conversion, and
- many others.
What is a Tortfeasor?
A tortfeasor is the name attributed to a person who commits a tort.
It's that simple.
What is a Joint Tortfeasor?
There is no reason in principle why a group of legal persons recognised by law - each a tortfeasor - may not be found jointly and severally liable in a court case.
"Joint Tortfeasors" (tort-fees-sors) is a reference to a group of legal persons, each of which plays a part in commission of the tort - such as an infringement of patent rights, or any of the other torts listed above.
The classic case is the tort of conspiracy. By definition, conspiracy gives rise to joint and several liability amongst all of the tortfeasors, ie the joint tortfeasors.
It depends on the facts of the case and whether the separate persons participated in a common design.
The loss or damage suffered at the hands of all of joint tortfeasors may be:
- caused by the same persons, or
- separate and distinct loss, each caused by different persons, whether individuals or separate legal entities.
Joint Liability in Tort
In tort law, joint liability arises where a person:
- urges, directs or provokes another to commit the same tort
- actively participates in the commission of the tort, or
- participates in a common design,
provided that the damage is the same.
Several liability arises where different damage is caused by different tortfeasors to the same claimant.
The liability of each tortfeasor is separate and distinct because:
- the causes of action are different (ie they're based on different facts which match the particular tortfeasors participation in the combination), and
- the liability for loss arises from different acts.
In these cases, a claimant must recover the separate damage from the particular defendant that caused the damage.
Reason for Joint and Several Liability
When a tort is committed by a number of different persons which causes the same damage any one or more of those responsible may be sued for the loss.
From a legal perspective, it makes senses that if two or more people cooperate unlawfully to infringe someone else's rights, and their unlawful acts combine to cause the same damage, they should all be liable for it.
Differences between Joint Liability and Several Liability
The difference between joint liability and several liability lies in that the damage caused is different in cases giving rise to several liability.
Where the damage is the same, joint liability arises between the tortfeasors.
There are other consequences, such as releasing one joint tortfeasor will release all other joint tortfeasors from liability. Subject to satisfaction of certain conditions, this is the case for several liability as well.
Where different damage is caused by different persons, each person is only liable for the loss that they caused - ie several liability.
Is it Joint or Several Liability?
In a case where multiple defendants are involved in the commission of a tort, whether or not joint liability exists is determined by focusing on the acts that were committed that gave rise to liability in the first place - ie the cause of action.
In the case that each of the intended defendants can be sued:
- on the same set of facts,
- for the same liability (including through vicarious liability),
then each of the defendants are joint tortfeasors.
Where each is liable for a separate tort, and not the same tort, they are several tortfeasors.
Application of the Law
Where a claimant has a good arguable case that several defendants are liable for damage caused, it can be used in support of interim injunctions to obtain interim relief at the outset of legal proceedings, against all of the tortfeasors.