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.