I. General remarks

1 Art. 148 and Art. 149 CO regulate the internal relationship of the joint and several liability. The legal consequence in the internal relationship – the right of recourse – occurs if the joint and several debtor claimed by the creditor has borne more in the external relationship than their liability quota in the internal relationship (Art. 148 para. 2 CO).

The creditor's rights are also transferred to the joint and several debtor within the framework of subrogation according to Art. 149 CO.

II. Internal liability quota of the joint and several debtors

A. Principal of equal distribution

2 Art. 148 para. 1 CO presumes that all joint and several debtors have to bear the debt in equal quotas. Therefore, there is a reciprocal right of recourse for the joint and several debtor that has paid more than the amount of the joint and several debt divided by the number of co-debtors.

3 Anyone who wishes to deviate from the legal principle of equal distribution and derive rights from it accordingly must prove this in accordance with the general distribution of the burden of proof in Art. 8 CC.

B. Exceptions

4 The legislator was aware that there may be legal relationships that impose a deviation from the principle of equal quota. In reality, unequal liability quotas are more common than an equal distribution.

By means of a contractual agreement between the joint and several debtors, for example, deviating internal liability quotas may be agreed upon (e.g. in the case of a simple partnership pursuant to Art. 533 CO).

5 Aside from contractual clauses, the law provides for an exception to the equal quota in numerous places. First and foremost, Art. 50 et seq. CO should be mentioned. Whether at all and – if so – to what extent a liable tortfeasor can take recourse against the other persons involved is determined by judicial discretion (Art. 50 para. 1 CO). If several tortfeasors are liable on different legal grounds, liability is determined by the liability cascade according to Art. 51 para. 2 CO.

6 Further deviations by law can be found in Art. 759 para. 3 CO on liability under corporation law, in Art. 640 para. 3 CC on recourse to co-heirs for debts of the deceased

and in Art. 649 CC on the bearing of costs and expenses among co-owners.

7 Finally, constellations are conceivable in which a deviation of the legal principle is also to be pleaded due to the concrete circumstances. If two spouses jointly take out a loan to finance the husband's hobby, the wife should be granted a full right of recourse against her husband.

III. Recourse

A. Requirements and extent

8 The right of recourse of the jointly and severally liable debtor presupposes that the debtor has actually performed to the creditor.

A mere court ruling obliging the performance is not sufficient. In addition, the debtor must have performed more than their internal quota. Both requirements must be proven by the joint and several debtor taking recourse.

9 Consequently, Art. 148 para. 2 CO gives rise to an autonomous right of recourse that exists independently of the legal relationship between the joint and several debtors.

The joint and several debtor that has been prosecuted by the creditor can take recourse against the other joint and several debtors for the amount exceeding their fair share. This right of recourse is always a monetary debt. This means that a performance in kind or service must be converted into a monetary amount, if necessary.

10 Finally, joint and several liability among the debtors only comprises in the external relationship with the creditor. The debtors are not jointly and severally liable to each other when facing a recourse claim of one of their co-debtors. Each debtor is only liable for their internal share.

An acquittal granted by the creditor to only one of the debtors does not affect the right of recourse in the internal relationship.

B. Interest and legal costs

11 The claim for recourse becomes due once the prosecuted joint and several debtor has paid more than their fair share to the creditor (cf. Art. 75 CO). Interest is owed on the recourse claim;

except as otherwise provided, the interest rate accounts for 5% p.a. (Art. 73 para. 1 CO).

12 If a joint and several debtor defends him- or herself in a lawsuit against the creditor's claim, they may take recourse to the other joint and several debtors for the legal costs incurred. The prerequisite for this is that a victory in the civil action would have led to the release of all joint and several debtors and that the contestation of the claim has not been deemed hopeless.

C. Prescription

13 The relative prescription period of the recourse claim lasts three years. It begins as soon as the joint and several debtor against whom recourse is sought has performed to the creditor and gained knowledge of the other joint and several debtors (Art. 139 CO). This requires cumulatively that the joint and several debtor entitled to recourse has concrete knowledge of the co-debtors and is also aware of all of the facts that establish the liability of the other party and thus enable legal action to be taken against them.

14 Even if Art. 139 CO does not provide for an explicit absolute prescription period, an absolute ten-year period should be assumed by analogy with Art. 60 para. 1, Art. 67 para. 1 and Art. 127 para. 1 CO.

However, part of the doctrine rejects an absolute prescription period. The main point of criticism is that if an absolute time limit is affirmed from the time of the damaging event, the right of recourse could become time-barred even before it arises. However, if the beginning of the limitation period is to be set at the time of performance of the debtor to the creditor – as is advocated here – the aforementioned concern is without cause and the application of an absolute prescription period may be approved.

15 Art. 139 CO is applicable to cases of both perfect and imperfect joint and several liability.

The law then provides for its own prescription rules for numerous special-law liability provisions that must be observed. These provisions take precedence over the general rule of Art. 139 CO.

IV. Irrecoverable recourse claim

16 If a joint and several debtor's internal quota can no longer be obtained in its entirety, the shortfall is to be borne equally by all of the joint and several debtors (Art. 148 para. 3 CO). This is the case if the debtor in question is insolvent, the costs of recourse proceedings would be disproportionate to the internal share or if the co-debtor is at an unknown domicile.

17 If there should be an allocation formula that deviates from the principle stated in Art. 148 para. 1 CO based on a contractual agreement or the law, the shortfall of a joint and several debtor shall also be borne in accordance with this uneven allocation. Otherwise, the distribution is made according to heads.

18 The law provides in Art. 51 CO for a cascade that determines the liability among imperfect joint and several debtors. In this case, the bearing of the shortfall is also determined according to this cascade. There is therefore no apportionment if the joint and several debtors are on different levels of the cascade.

Bibliography

Bucher Eugen, Schweizerisches Obligationenrecht Allgemeiner Teil ohne Deliktsrecht, 2nd ed., Zurich 1988.

Bugnon Hubert, L’action récursoire en matière de concours de responsabilités civiles, diss., Entlebuch 1982.

Däppen Robert K., in: Widmer Lüchinger Corinne / Oser David (eds.), Basler Kommentar, Obligationenrecht I, 7th ed., Basel 2020.

Fellmann Walter, Das neue Verjährungsrecht, ZBJV 156/2020, p. 201 et seq.

Gauch Peter / Schluep Walter R. / Emmenegger Susan, Schweizerisches Obligationenrecht Allgemeiner Teil, Band II, 11th ed., Zurich / Basel / Geneva 2020.

Gautschi Alain, Solidarschuld und Ausgleich, diss., Zurich / St. Gallen 2009.

Graber Christoph K., in: Widmer Lüchinger Corinne / Oser David (eds.), Basler Kommentar, Obligationenrecht I, 7th ed., Basel 2020.

Geissbühler Grégoire, Le droit des obligations, Volume 1: partie générale, Geneva / Zurich / Basel 2020.

Huguenin Claire, Obligationenrecht Allgemeiner und Besonderer Teil, 3rd ed., Zurich / Basel / Geneva 2019.

Jung Peter, in: Honsell Heinrich (ed.), Kurzkommentar OR, Basel 2014.

Kratz Brigitta, Berner Kommentar, Solidarität, Art. 143-150 OR, Bern 2015.

Krauskopf Frédéric, Zürcher Kommentar, Die Solidarität, Art. 143-150 OR, 3rd ed., Zurich / Basel / Geneva 2016.

Mazan Stephan, in: Furrer Andreas / Schnyder Anton K. (eds.), Handkommentar zum Schweizer Privatrecht, Obligationenrecht Allgemeine Bestimmungen, 3rd ed., Zurich / Basel / Geneva 2016.

Perritaz Vincent, Le concours d’actions et la solidarité, diss., Zurich / Basel / Geneva 2017.

Pichonnaz Pascal, in: Thévenoz Luc / Werro Franz (eds.), Commentaire romand, Code des obligations I, 3rd ed., Basel 2021.

Romy Isabelle, in: Thévenoz Luc / Werro Franz (eds.), Commentaire romand, Code des obligations I, 3rd ed., Basel 2021.

Rothenberger Adrian, Die Verjährung des Regressanspruchs, in: Fellmann Walter (ed.), Das neue Verjährungsrecht, Symposium of 29 October 2019 in Lucerne, Bern 2019, p. 73 et seq.

Schwenzer Ingeborg / Fountoulakis Christiana, Schweizerisches Obligationenrecht Allgemeiner Teil, 8th ed., Bern 2020.

Tercier Pierre / Pichonnaz Pascal, Le droit des obligations, 6th ed., Geneva / Zurich / Basel 2019.

von Tuhr Andreas / Escher Arnold, Allgemeiner Teil des Schweizerischen Obligationenrechts, Band II, 3rd ed., Zurich 1974.

Werro Franz, Le recours du responsable civil (art. 51 al. 2 CO), celui de l’assureur privé (art. 95c al. 2 LCA) et la prescription de l’action récoursoire (art. 139 CO), ZSR 140 (2021) I, p. 3 et seq.