Kuwait Court of Cassation principle number 494

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 consequence. He may have recourse against the remaining debtors, each to the extent of his share in the debt or in that excess. - Multiple persons liable for damage. Its consequence. Each is obliged, vis-à-vis the injured party, to pay full compensation, and their obligation is joint and several. The burden is apportioned among them according to each one’s fault and contribution to causing the damage. Inability to determine each one’s role. Its effect. The burden of liability is apportioned equally among them. Example. Rule: It is established, 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 not have recourse against any of the debtors except to the extent of his share, which indicates—as disclosed by the Explanatory Memorandum to the Law—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 in the debt or in that excess. Whereas it is established that the provision in Article 228 of the Civil Code that “1- If there are multiple persons through whose fault the damage occurred, each shall be obliged, vis-à-vis the injured party, to compensate for all damage. 2- The burden of liability shall be apportioned among the multiple liable persons according to the role of each one’s fault in causing the damage; if that role cannot be determined, the burden of liability shall be apportioned equally among them” indicates—as stated in the Explanatory Memorandum to the Law—that if damage occurs as a result of multiple faults committed by many persons, each of them is obliged, vis-à-vis the injured party, to pay full compensation, and the multiple liable persons bear the compensation jointly and severally. In the relationship among those liable persons themselves, however, the burden of liability is apportioned among them according to the role of each one’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 issued in Case No. ..... of 2006, Commercial, Court of First Instance—previously described—ordered the appellants and the second respondent, jointly and severally among themselves, to pay the deceased’s heirs the compensation awarded—jointly and severally among themselves—and that the appellant company deposited a cheque for 24420 dinars with the Enforcement Department and paid 60 dinars, representing the total compensation awarded inclusive of judicial costs, and since the judgment awarding compensation did not determine the role of each liable person in causing the damage, the compensation awarded is to be apportioned equally among them. The second respondent’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 recover it from the second respondent. This is not altered by the absence from the papers of anything evidencing collection of the cheque proceeds for the heirs, as that does not preclude recognition, in principle, of the appellant company’s right of recourse against the second respondent upon proof that the cheque proceeds have been collected for the heirs. Since the judgment under appeal departed from this view, it must be varied in the manner set out in the operative part of this judgment.