The Multiple Debtors Case: the Extent of the Tortious Duty to Compensate Damage--Solidary or Proportional Liability?

Among the most complicated issues in the law of delict, in the case of multiple debtors, is to determine the scope of each co-debtor's liability. The rule of proportional liability clearly favours debtors more than the aggrieved party. And, on the contrary, the solidary liability best suits the interests of the aggrieved party as the risk of co-debtor's insolvency is transferred to the debtors. Furthermore, in the latter case, the debtors who attempt to allocate the scope of their liability among themselves and fail to reach an agreement have to undergo two legal procedures: the first concerning the compensation to the creditor, and the second concerning the determination of the scope of their liability among themselves. Adequate balancing of the interests of the two parties (the debtor and the creditor) lies among the major tasks of tort law. Therefore, he law should seek specific rules instrumental in determining the scope of the co-debtor's liability in the case of multiple debtors. The application of the rule of solidary liability is based on the assumption that individuals whose joint actions inflicted damage must compensate it together.