The Usefulness of Formal Concepts in Contemporary Private Law: the Debate on the Nature of In Solidum Obligations

Abstract

To this day, scholars differ as to whether, from the perspective of the external relationship between creditor and debtors, joint liability would be structurally defined by the existence of a single legal bond between the centers of interest of the creditor and the debtor, or whether there would be as many legal bonds as there are creditors and debtors. Based on the historical debate about the nature of the bond created by joint obligations, this paper will investigate two decisions issued by the Superior Court of Justice and a fictitious case, seeking to demonstrate that the reference to formal categories, although prestigious for didactic purposes, does not have the power to work as a tool capable of evaluating the facts and identifying the rules applicable to cases in dispute. In other words, if the judge restricts his investigation to a discussion of the logical-formal nature of the institutes, little or no attention will be given to the factual and normative elements relevant to identify and apply the legal framework to the facts of the case, nor there will be attention to an evaluative and functional approach of the norms, regulations and institutes applicable.