PLURALIDAD DE DEUDORES Y ACREEDORES EN LOS PRINCIPIOS DE DERECHO CONTRACTUAL EUROPEO.

Abstract

Before engaging in a study of the rules concerning plurality of debtors and creditors in Part III of the Principles of European Contract Law, we must humbly recognise that there are important stumbling blocks in the path to legal harmonisation. There are the terminological problems that arise when we attempt to identify the cases of plurality of debtors and creditors under different countries' legislations, and on top of that there are profound methodological and epistemological differences between civil law systems and common law systems. Several legal policy options are commented upon, and special attention is accorded to the presumption of solidarity of obligations where several debtors are obligated to render the same performance under the same contract. This option, which is consistent with the currently favoured principle of favor creditoris, combines with the maximum limitation of the scope of the effects of solidarity to make the solidarity system gentler. The fact that judgments concerning one of the solidary debtors do not affect the rest and have no res judicata effects with respect to the other debtors constitutes a particularly clear gentling of solidarity. However, as each solidary debtor is permitted to maximise his defence options in court, there arises the possibility that contradictory decisions may be handed down on the same matter, and that would detract from legal certainty.