CONTRIBUTION
In maritime law, where the property of one of several
parties with interests in a vessel and cargo has
been voluntarily sacrificed for the common safety
of the vessel—as by casting goods overboard to
lighten the vessel—such loss must be made up by
the contribution of the others, which is labeled
“general average.” In CIVIL LAW, a partition by
which the creditors of an insolvent debtor divide
among themselves the proceeds of the debtor’s
property in proportion to the amount of their
respective credits. The right of a defendant who
has paid an entire debt, or common liability, to
recoup a proportionate share of the payment from
another defendant who is equally responsible for
the payment of that debt or liability.
Certain principles apply when contribution is
sought in contractual situations. Where the parties
are severally (individually) liable for a specific
portion of a debt, one person who pays in excess
of his or her proportionate share has no legal
right to contribution from the others for the
excess. Where the parties are jointly liable (as a
unit) for the payment of a debt, a party who pays
in excess of his or her ratable share can seek contribution
from the others for the amount of his or
her overpayment. If the parties are jointly and
severally liable for a debt, both as a unit and as
individuals, any party who pays in excess of his or
her proportionate share can seek contribution.
To entitle a person to contribution, the payment
of the debt or liability must arise from a
legal obligation to pay. The payment of the entire
debt or liability is unnecessary, but the payment
must have exceeded the share of the person seeking
contribution.
A plaintiff who procures a judgment (a final
court decision that resolves a controversy and
determines the rights and obligations of the parties)
against two or more joint tortfeasors (those
who together commit a civil wrong) can collect
that judgment from all, any one, or less than all of
them. The English and early U.S. COMMON LAW
held that if one such defendant did in fact pay less
than a proportionate share of the judgment, that
defendant should reimburse the other defendant(
s) who paid more, except in cases of intentional
TORTS or acts of the defendant that did not
justify the court’s assistance. During the past century,
however, the majority of jurisdictions in this
country expanded this exception and denied all
common-law contribution among joint tortfeasors
regardless of the basis of liability, including
cases of NEGLIGENCE and STRICT LIABILITY.
Statutes—some of which are patterned after
the Uniform Contribution Among Tortfeasors
Act—supersede the common law in more than
half the states and provide for contribution in
some form. Several jurisdictions continue to
permit contribution by judicial decision, never
having adhered to the majority rule disallowing
it, although some states still generally deny contribution.
Of those states allowing contribution, the
majority allocate the damages among the defendants
in proportion to their relative fault. In the
remainder, which includes almost all those without
a statute, the damages are divided equally.
Certain defendants, such as an employer and his
or her employee, are aggregated and assessed a
single share.
Contribution is still generally but not universally
denied to willful tortfeasors. If the plaintiff
has sued and obtained a judgment against
fewer than all joint tortfeasors, some statutes
prohibit contribution from one against whom
there is no judgment. Other statutes permit contribution
in this instance, subject to satisfactory
proof of liability.
It is generally held, unless there is a statute
requiring otherwise, that a tortfeasor who settles
prior to trial—and therefore against whom
there is no judgment—can nevertheless obtain
contribution from other joint tortfeasors, but
must prove the liability to the plaintiff of the
other tortfeasors, the amount of the damages,
and the reasonableness of the prior settlement.
In an action for contribution, the party seeking
it must ordinarily establish that the tortfeasor
from whom contribution is sought was
subject to liability to the injured plaintiff, if no
judgment has been obtained determining that
liability. Certain defenses usually bar contribution,
such as automobile GUEST STATUTES and
the IMMUNITY granted to employers under the
WORKERS’ COMPENSATION acts, which only the
defendant in the action for contribution could
have asserted against the injured person. There
is some authority to the contrary, however.
CROSS-REFERENCES
Joint and Several Liability.
