Kuwait Court of Cassation principle number 101

Summary: - Joint and several debtors. Payment by one of them of the entire debt or more than his share thereof, or his doing either by another means equivalent to payment. Its implication. He may have recourse against the remaining debtors, each to the extent of his share of the debt or of that excess. Example. - A judgment based by the trial court on an understanding contrary to what is established in the papers. Its effect. Its invalidity. - Multiple persons responsible for damage. Its implication. Each is liable towards the injured party for compensation in full, and their obligation is joint and several. The burden is apportioned among them according to each person's fault and contribution to causing the damage. Impossibility of determining each person's role. Its effect. The burden of liability is apportioned equally among them. Example. Rule: It is settled—as provided in the first paragraph of Article 359 of the Civil Code—that "If one of the joint and several debtors pays the entire debt or more than his share thereof, or discharges it by a means equivalent to payment, he may have recourse against any of the debtors only to the extent of his share, indicates—as disclosed by the Law's Explanatory Memorandum—that if one of the joint and several debtors pays the entire debt or more than his share thereof, or does either by another means equivalent to payment, he has recourse against the remaining debtors, each to the extent of his share of the debt or of that excess. If the trial court bases its judgment on an understanding contrary to what is established in the case papers, its judgment is invalid and must be quashed. That being so, and as it is established from the papers that the judgment rendered in Case No. .... of 2006, Plenary Commercial, which became final upon issuance of the judgment in Commercial Cassation Appeals Nos. ...... of 2007, ordered the appellants and the second respondent, jointly and severally, to pay the heirs of ......., who died during and as a result of work for the second appellant company because of the negligence of the first appellant and the second respondent, an amount of 24000 dinars, and the second appellant deposited with the Enforcement Department a cheque for the amount awarded, including judicial costs, it is therefore entitled to have recourse against its fellow debtors—including the second respondent—to claim what it paid in excess of its share. Since the challenged judgment departed from this view and dismissed the second appellant company's request to order the second respondent to pay his share of the amount awarded, on the ground that the papers contained no connection or relationship entitling the second appellant to have recourse against him to demand payment of the amount it paid in excess of its share, this means that the trial court failed to appreciate the significance of the documents submitted by the second appellant and what is established therein. Accordingly, the challenged judgment is defective for contradicting what is established in the papers, requiring its partial cassation in this respect. As regards the merits of the appeal—insofar as the judgment was quashed—it is ready for determination. For the foregoing reasons, and as it is settled that Article 228 of the Civil Code provides: "1- If there are multiple persons through whose fault the damage occurred, each shall be liable towards the injured party to compensate for all damage. 2- The burden of liability shall be apportioned among the multiple responsible persons according to the role of each person's fault in causing the damage; if that role cannot be determined, the burden of liability shall be apportioned equally among them," this indicates—as stated in the Law's Explanatory Memorandum—that where damage results from multiple faults committed by numerous persons, each is liable towards the injured party for compensation in full, and the multiple responsible persons bear the compensation jointly and severally. As between those responsible persons themselves, however, the burden of liability is apportioned according to the role of each person's fault in causing the damage; if that role cannot be determined, the burden of liability is apportioned equally among them. That being so, and as it is established that the judgment rendered in Case No. 5076 of 2006, Plenary Commercial—previously described—ordered the appellants and the second respondent on appeal, jointly and severally, to pay the deceased's heirs the compensation awarded—jointly and severally—and that the appellant company deposited a cheque for 24420 dinars with the Enforcement Department and paid 60 dinars, representing the total compensation awarded including judicial costs, and as the compensation judgment did not determine each responsible person's role in causing the damage, the compensation awarded is apportioned equally among them. The second respondent on appeal's share of that amount is 8160 dinars (the value of one third of the amount paid), and the second appellant company is entitled to have recourse against the second respondent on appeal for it. This is not altered by the absence from the papers of evidence that the cheque's value was collected for the heirs, as that does not preclude establishing, in principle, the appellant company's right of recourse against the second respondent on appeal upon proof that the cheque's value was collected for the heirs. Since the appealed judgment departed from this view, it must be amended as set out in the operative part of this judgment.