Joint and several liability and separate liability of the heirs for hereditable obligations – short comparative and historical overview

Abstract

The article researches the different approaches for regulation of the liability of the heirs for hereditable obligations. Historical and comparative researches were made. The European legislations can be divided in two big groups. The legislations form the first group set a separate liability of the heirs - each one of them owes only a part of the debt equal to his share of the estate. The legislations of France, Ukraine, Bulgaria, etc. are included in this group. The legislations from the second group govern joint and several liability for the heirs. A creditor of the estate has a right to demand an enforcement of the whole size of hereditable obligation from one of the heirs and this enforcement releases all of the heirs from their liability. This group includes the civil legislations of German, Switzerland, Spain, Russian federation, Macedonia, etc. The author position is that the separate liability is more proper for regulation of the heir’s liability for hereditable debts. Historical, comparative and theleological methods are used for proof of this thesis. The historical development of this liability from Roman private law is traced and researched. A short overview of the aims of each one of the two kinds of liability is made in the article. The joint and several liability protects only the interest of the creditors of the estate. It is considered in the doctrine as a debt security. The separate liability protects the interest not only of the creditors, but of the heirs too. But only the liability for divisible obligations is separate. The liability for indivisible obligations is joint and liability. The separate liability can’t be applicable for them because of the specific of this kind of obligations.