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A joint and several obligor who has performed more than its share may claim the excess from any of the other obligors to the extent of each obligor's unperformed share.

 

COMMENT

 

After a joint and several obligor has paid more than its share to the obligee, it has contributory claims against the other obligors to recover the excess, on the basis of the respective shares.

 

Illustrations

 

1. Companies A and B have borrowed EUR 10,000,000 from bank X to finance the acquisition of stock in another company. A’s and B’s shares are in principle equal. If A has reimbursed the full amount to X, it can claim contribution from B for the amount in excess of A’s own share of 50 %, i.e. EUR 5,000,000.

 

2. The facts are the same as in Illustration 1, except that A and B have agreed that their respective participations in the acquisition would be 75% and 25%. If A has ultimately to bear 75% of the reimbursement, A can only recuperate the excess, i.e. B’s share of EUR 2,500,000.

 

3. Company A applies for a loan of EUR 10,000,000 from bank X. The loan is granted on the condition that company B intervene as a joint and several obligor. As between the two companies, it is understood that B only serves as a guarantor. A’s share is 100 %. If B has repaid the loan to X, B can claim full reimbursement from A.

 

The rule in Article 11.1.10 can also apply in more complex circumstances.

 

Illustration

 

4. Investors A, B and C have joined efforts to buy an office building. The total price amounts to USD 1,000,000 but the respective agreed shares are 50%, 30% and 20%. The seller is entitled to request payment of USD 1,000,000 from any of the obligors but it can only recover USD 650,000 from A; the seller then recovers the remaining USD 350,000 from B. A has paid USD 150,000 in excess of its share of USD 500,000; B has paid USD 50,000 in excess of its share of USD 300,000. C’s share, on the other hand, is totally unpaid. A and B will respectively have contributory claims of USD 150,000 and USD 50,000 against C.

 

Articles 11.1.6(2), 11.1.7(1)(b) and 11.1.8(b) provide for particular rules on the availability of contributory claims under the circumstances respectively governed by these provisions.

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