Joint and several liability

It can matter where several people sit on the same side of a deal: co-owners selling together, or several guarantors behind one obligation. Whether a claimant can pursue any one of them for the full amount, and what the paying person can recover from the others, depends on the wording and the governing law. See how long you stay liable after selling and personal guarantees.

How two provinces treat it

Ontario’s Negligence Act provides that where damages were caused or contributed to by the fault or neglect of two or more persons, and two or more are found at fault, they are jointly and severally liable to the person suffering loss; as between themselves, in the absence of any contract express or implied, each must contribute and indemnify the others in the degree of their fault. That section deals with damages caused by fault or neglect. The Civil Code of Québec says solidarity between debtors is not presumed and exists only where expressly stipulated by the parties or provided for by law, but it is presumed where an obligation is contracted for the service or operation of an enterprise. It adds that the creditor of a solidary obligation may apply for payment to any one of the co-debtors at the creditor’s option. Other provinces have their own rules.

What to check or ask

• Whether the contract says “jointly”, “severally” or “jointly and severally”, and who is named.
• Whether sellers or guarantors are liable for a share or for the whole.
• Whether a payment by one party releases the others, or leaves a right to recover from them.