joint and several liability

Which translation, when

Why

The English doublet is one German institution, the Gesamtschuld. § 421 BGB gives the creditor the whole claim against each debtor, at his choice, until performance is complete, which is precisely what joint and several was built to say, so the rendering is gesamtschuldnerische Haftung, in drafting die Parteien haften als Gesamtschuldner. Two things follow that the English reader does not carry with him. Contractual co-debtors are Gesamtschuldner in doubt anyway, § 427 BGB, so the clause confirms the German default more than it creates one, while a true share-only liability is the Teilschuld of § 420 BGB and needs saying. And the interior is codified, § 426 BGB gives the paying debtor recourse against the others, in equal shares in doubt, with the creditor’s claim passing to him by operation of law, § 426 Abs. 2 BGB, so contribution, a separate body of rules in England, is built into the German default and any different internal split must be written in.

Typical mistakes

• Gemeinsam und einzeln haftbar is the piecewise shadow of the doublet, German lawyers write als Gesamtschuldner, and the literal pair marks the clause as unchecked output.
• Silence about contribution is not neutrality, § 426 BGB fills it with equal shares and a cessio legis, a consortium that wants another internal split must say so in the German text.
• Several liability alone is the Teilschuld of § 420 BGB, each debtor owing his share only, and since § 427 BGB presumes Gesamtschuld for contractual co-debtors, the share-only reading is the one that needs express words.

What matters

Consortium and guarantee drafting leans on the clause: the members shall be jointly and severally liable arrives in German as die Mitglieder haften als Gesamtschuldner, § 421 BGB. The piecewise rendering does not change the law, § 427 BGB reaches the same default for contractual co-debtors, it changes the reader, who now knows the German text was never in front of a German lawyer.

Examples