dissenting:
I understand the court to hold today that the "proportionate share" of the indebtedness of a remaining debtor on a joint obligation, after the release of one or more of the other joint debtors by the creditor, is different from his proportionate share of the original obligation relative to the other joint debtors. Because I consider it unnecessary (and somewhat anomalous) to attribute to the legislature an intent to define "proportionate share" in two different ways for the same obligation, reintroducing the notion of contribution and encouraging an additional round of litigation in the very provision in which it expressly abolishes joint and several lability for non-settling joint debtors, I respectfully dissent.
While retaining joint and several lability of obligors for joint obligations, article 50 of title 13 changes the preexisting rule and permits a creditor of joint debtors to release one or more of the debtors without releasing the remaining debtors or discharging the entire joint debt. § 183-50-102, 5 C.R.S. (2000). Instead, the release is to be treated merely as the payment of the "full proportionate share of the debtor so released." Id. Although section 13-50-102 also indicates that such release shall not release or discharge or affect the liability of remaining debtors, section 13-50-1038 expressly changes the nature of the obligation of any remaining joint debtor from one of joint and several liability to liability for no more than his proportionate share of the indebtedness. § 18-50-1038. Article 50 is therefore not merely concerned with the amount of the joint obligation that remains after the release of some debtors, but actually limits and defines the extent of each co-debtor's remaining liability after the abolition of joint and several liability.
The statute itself merely refers to a "proportionate share," without further embellishment. - Colorado's statutory provisions governing the incidents of partnerships, however, make clear that although partners are jointly and severally liable to those dealing with the partnership, § 7-64-306(1), 2 C.R.S. (2000), the partners are individually chargeable with a share of the partnership losses only in proportion to each partner's entitlement to a share of the partnership profits. § 7-64-401(2). - This share, in turn, is determined by the number of partners only if not otherwise specified in the partnership agreement. § 7-64-103(1). Similarly, in the context of a right of contribution, the term "proportionate share" generally refers to the percentage of the original obligation for which the obligor is lable to his co-obligors. See, eg., Humphrey v. O'Connor, 940 P.2d 1015, 1020 (Colo.App.1996) (explaining the reference in comment b to the Restatement of Restitution § 82 (1937) to mean that no common law right to restitation exists for a co-obli-gor unless he pays more than his "proportionate share" of the original common liability). The majority acknowledges as much by recognizing a right to contribution against other co-debtors by a nonsettling debtor who is required to pay "more than his share of the obligation." Maj. op. at 713.
*715Nevertheless, in reliance upon prior cases that apparently do not involve a partnership agreement allocating profits and losses on anything other than a per-capita basis, see Simpson v. Morgan, 124 Colo. 441, 444, 238 P.2d 200, 202 (1951), and statutes from other jurisdictions that lack any similar provision abolishing joint and several liability upon partial settlement, see Minn.Stat. § 548.21; Ohio Rev.Code § 1799.09, .10; Walsh v. Miller, 51 Ohio St. 462, 38 N.E. 381 (1894), the court construes the term "proportionate share" in section 18-50-1083 to mean a per-capita share based on the number of co-obligors. While construing "proportionate share" to mean per-capita liability may relieve a creditor of some of the disadvantages of taking action that statutorily relieves its debtors of joint and several liability, such a construction requires a presumption that the legislature intended a debtor's "proportionate share" of a single obligation to mean different things relative to different parties, as well as a presumption that the legislature intended to apply principles of common law contribution to co-debtors who are not subject to joint and several liability. Cf. Humphrey, 940 P.2d at 1020 (construing Restatement of Restitution § 82 to allow for right of contribution only where co-debtor has paid entire common obligation or has paid more than his share and discharged co-obligor's obligation on debt).
Although section 13-50-102 may benefit creditors by permitting them to settle with some joint debtors without discharging the entire joint obligation, it seems clear to me that section 18-50-1083 is specifically designed to benefit the remaining co-debtors, once the creditor chooses to settle a portion of the debt, by relieving them of joint and several liability. Having abolished joint and several liability in this situation without expressly creating a third scheme of per-capita liability with a concomitant right of contribution, the legislature, by referring to "proportionate shares," should be taken to have returned the situation to one of individual liability for each debtor based on his individual share of the indebtedness.
To the extent that no express agreement otherwise allocates proportionate shares among the partners or co-debtors, per-capita liability is presumed and no right of contribution exists or is required. To the extent that the liability of co-debtors to each other for satisfaction of the obligation varies from per-capita liability, the abolition of joint and several liability subjects each co-debtor merely to his proportionate share of the obligation. I am disinclined to assume more than is necessary to make rational sense of a legislative mandate, and I find it imminently reasonable for the general assembly to have abolished joint and several liability for non-settling co-debtors for the express purpose of limiting their lability to no more than their share of the original common liability and eliminating the need for subsequent litigation among co-debtors.
I would therefore reverse the judgment of the court of appeals and hold that under the Colorado Joint Rights and Obligations Act, a joint debtor's proportionate share of indebtedness should be calculated on a percentage interest basis rather than merely a per-capita basis.