Officiële Toelichting

Plurality of obligees occurs in different situations.

Other instances of plurality of obligees occur, among others, with co-insurers, multiple buyers and/or sellers in share acquisition agreements and partners in consortium agreements in various sectors, such as the construction sector or the petroleum industry.

This Section applies when the different obligees can claim performance of the same obligation from the obligor. This is the case in Illustration 1 (reimbursement of the syndicated loan). Situations where different obligees of the same obligor have rights deriving from different obligations do not fall under the scope of this Section.

On the other hand, when different actors in a construction project join in a consortium and claim one payment for all their services, they are to be considered as plural obligees for that payment.

The ‘same obligation’ usually derives from a single contract. In Illustration 1, the syndicated loan agreement is a single contract. It could however also happen, in the same situation, that each lender would choose to have its own contract with the borrower. Co-insurers joining to cover the same risk usually have distinct contractual relationships with the insured.

Article 11.2.1 defines three main types of claims available in practice when several obligees can claim performance of the same obligation from an obligor.

The claims can be separate. Each obligee can then claim only its share.

The claims can be joint and several, which means that each obligee can claim full performance (see Article 11.2.2), subject to subsequent allocation between the different obligees (see Article 11.2.4).

The claims are ‘joint’ when all obligees have to claim together; consequently, the obligor may only perform in favour of all of them together. This situation is sometimes also referred to as ‘communal claims’.

In the case of plurality of obligors, Article 11.1.2 sets a presumption of joint and several obligations, because this corresponds to the most frequent commercial practice.

On the contrary, when it comes to determining to which of the three types defined in this Article claims by plural obligees belong, the Principles do not provide any presumption. The reason is that none of these types seems to be dominant in practice; choices vary considerably, mainly depending on the operation concerned.

Consequently, in situations where plural obligees are involved, parties are encouraged to choose the relevant type by an express stipulation.

Before making such a contractual choice, parties should pay attention to the advantages and disadvantages of each of the different types of plural claim.

In particular, joint and several claims have the advantage of avoiding the multiplication of law suits. This is an especially important concern in international trade. Any of the obligees may claim the whole performance. Joint and several claims also simplify the situation of the obligor, who will not have to divide performance between its different obligees. From the point of view of the plural obligees themselves, claims are normally easier if they are joint and several.

On the other hand, plural obligees have to be aware that if their claims are joint and several they lose exclusive control of their respective shares. Any other joint and several obligee may claim and collect the whole performance, with the risk that later allocation under Article 11.2.5 could create difficulties. This explains why separate claims seem to be more prevalent in certain sectors (see for instance Illustration 1).

If the parties have failed to make an explicit contractual choice, the type to which a plural claim should be assigned will be determined by interpretation of the contract in accordance with the provisions in Chapter 4. In many instances circumstances such as the nature or the purpose of the contract will be especially relevant (see Article 4.3 (d)).

In practice, plural obligees often designate an agent with the authority to deal with the obligor on behalf of all of them, within agreed limits. This seems to be especially frequent, for practical reasons, when the claims are separate. However, in that case, each obligee intends to keep full control of its own rights, often reserving the possibility to revoke the agent's authority at any time.

The initiative of designating an intermediary may come from an obligor who wants to exert some control over claims which could be separately brought by its numerous obligees.