6.7 Joint and Several Contracts

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

6.7 JOINT AND SEVERAL CONTRACTS

6.701 In General. Virginia law recognizes that the obligations of co-obligors under a contract may be either "joint," "several," or "joint and several." The Restatement (Second) of Contracts ⁴⁸⁰ notes that these terms

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have two distinct and often confusing usages that are applicable to Virginia law. One usage relates to whether multiple obligors have promised the same performance or have each promised separate performances under a contract. If co-obligors promise the same performance, the obligations are "joint." If one co-obligor promises one performance and another co-obligor promises a separate and different performance, each is bound independently of the other, and the obligations are "several."

The question of what performances are promised under a contract, namely, whether multiple obligors have promised a single undivided performance or each has promised a limited and separate performance, is one of interpretation. ⁴⁸¹ Whether a contract is joint, several, or joint and several depends on the intention of the parties and is ascertained from the contract as a whole using the ordinary rules of contract construction. ⁴⁸²

6.702 Several Liability. In some cases, Virginia courts have interpreted contracts to provide for only a separate or "several" performance by each multiple obligor. In Cochran v. Bise, ⁴⁸³ the court held that where a husband and wife made an oral agreement with a caregiver that each would leave him a child's share under their respective wills, the promises of the husband and wife were several and not joint. In finding that the statute of limitations had run against the husband, the court rejected the caregiver's argument that it was a joint promise. The court reasoned that neither the husband nor the wife had the right to leave the caregiver a share of the other's property and that each had promised separately that he or she would leave the caregiver a share of his or her respective property.

In Virginia Black Mountain Coal Co. v. Virginia-Lee Co., ⁴⁸⁴ three unrelated coal companies that owned three different mines in the same field entered into three separate contracts with the same sales agent to sell the output of each mine. Each contract had identical terms and contained a provision that "this agreement is to be construed as though all the parties to said agreements had executed one and the same agreement." The court held that the contracts were several and were not converted into a joint contract by this provision. The court noted that, when co-obligors engage in the performance

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of distinct and separate duties, mere words of plurality such as "we bind ourselves" will not make a contract joint.

6.703 Joint Liability. In other cases, Virginia courts have found the liability of co-obligors to be joint. In Brown v. Ford...