DELAY IN PERFORMANCE OF OBLIGATIONS

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ARTICLE 1169
Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extra-judicially demands from them the fulfillment of their obligation.
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What isdelay ?
ACCORDING TO LAW: 1. Ordinary delay

the failure to perform an obligation on time

2. Legal delay (default or mora)

the failure to perform an obligation on time which failure constitutes a breach of the obligation
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Kinds of delay or default: Mora Solvendi

-the delay on the part of the debtor TYPES OF MORA SOLVENDI
1. Mora Solvendi Ex re default in real

obligations personal

2. Mora Solvendi Ex persona default in

obligations
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Kinds of delay or default: Mora Solvendi

REQUISITES:
1. The obligation must be due, enforceable and 2. There must be non-performance; and 3. There must be a demand

already liquidated or determinate in amount;

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Kinds of delay or default: Mora Solvendi

EFFECTS: 1. Debtor is guilty of breach of the obligation
1. Liability: If obligation to pay money- must

pay interest. If no extra-judicial demand, interest runs from the filing of the complaint. In other obligations, pay damages.
2. Obligations to deliver a determinate thing,

liable for fortuitous events. If debtor can prove that loss would have resulted even if he had not been in default, the court may equitably mitigate the damages (Art. 8/5/12 2215[4]) Art.

Kinds of delay or default: Mora Accipiende

-default on part of creditor when he unjustifiably refuses to accept the performance of the obligation. REQUISITES:
1. Offer of performance by the debtor 2. Offer must be to comply with the prestation

as it should be performed
3. Creditor refuses the performance without

just cause
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Kinds of delay or default: Mora Accipiende

EFFECTS:
1. The creditor is guilty of breach of the

obligation

2.

Liable for damages, suffered, if any by the debtor (Art. 1262)

3. He bears the risk of loss of the thing due 4. If the obligation is to pay money, the debtor

is not liable for the interest from time delay

5. The debtor may relieve himself of the

8/5/12 obligation by consigning in court the thing or Art.

Kinds of delay or default: Compensatio Morae

-both parties are in default in reciprocal obligations there is no actionable default on the part of both parties Rule in Reciprocal Obligations: In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins. Performance must be simultaneous unless 8/5/12 different dates for the performance. Art.

When demand is not necessary to put the debtor obligation so provides in delay 1. When the
2. When the law so provides 3. When time is of the essence

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When demand is not necessary to put the debtor in delay useless 4. When demand would be
5. When there is performance by a party in reciprocal obligations

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GROUNDS FOR DAMAGES FOR NON-PERFORMANCE OF OBLIGATIONS

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The grounds for liability in the nonperformance of obligations include fraud, negligence, delay, and contravention of the terms of the contract. These are provided for in Articles 1170, 1171, 1172, 1173 and 1174
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ARTICLE 1170
Those who in the performance of their obligations are guilty of fraud, negligence, or delay and those who in any manner contravene the tenor thereof, are 8/5/12 liable for damages.

Grounds for Liability: Fraud ( deceit or dolo)

The deliberate or intentional evasion of the normal fulfillment of an obligation -synonymous to bad faith TYPES OF FRAUD: 1. Incidental fraud ( dolo incidente) Art. 1170 2.Causal fraud ( dolo causante) Art. 1338 fraud employed in the execution of the contract
Art. 1170 Incidental fraud committed in the performance of an obligation already existing 8/5/12 because of contract.

Art.

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Grounds for Liability: Fraud ( deceit or dolo)

REMEDIES OF DEFRAUDED PARTY:
1. Insist on specific performance (Art 1233) 2. Resolve contract (Art 1191) 3. Claim damages, in either case

Art. 1233 - A debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been

Art. 1191 - The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also 8/5/12 Art. seek rescission, even

Grounds for Liability: Negligence ( fault or culpa) Any voluntary act or omission, there being no
KINDS OF NEGLIGENCE:

malice, which prevents the normal fulfillment of an obligation 1. Quasi-Delict (Culpa aquiliana/culpa extra contractual)- source of obligation 2. Contractual Negligence (Culpa Contractual)negligence in the performance of a contract
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Grounds for Liability: Negligence ( fault or culpa) CULPA AQUILIANA

CONTRACTUAL
Negligence is

substantive and independent

There may or may not

Negligence merely an

incident of performance of an obligation contractual relation

be pre-existing contractual obligation

Source of obligation is

There is a pre-exiting Source of the obligation

the negligence itself proved

Negligence must be

is the breach of contractual obligation

Proof 8/5/12 of existing of

Art. contract and its breach

Grounds for Liability: Negligence ( fault or culpa)OF CONTRIBUTORY EFFECTS

NEGLIGENCE OF THE CREDITOR
GENERAL RULE: Reduces or mitigates the damages which he can recover EXCEPTION: If the negligent act or omission of the creditor is the proximate cause of the event which led to the damage or injury complained of, he cannot recover.
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Grounds for Liability: Delay ( mora)

- Discussed under Article 1169

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Grounds for Liability:

Contravention of the terms of the obligation
The violation of the terms and conditions stipulated in the obligation - damages to be awarded is left to sound discretion of the court in accordance with the provisions of the Civil Code on Damages (Title XVIII)

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Grounds for Liability: Fraud and Negligence distinguished FRAUDis deliberate NEGLIGENCE There

intention to cause damage There is no deliberate intention to cause Liability cannot be damage mitigated
Liability may be Waiver for future

mitigated fraud is void Waiver for future It must be clearly negligence may be proved while allowed in certain cases
8/5/12 It is presumed from Art.

ARTICLE 1171
Responsibility arising from the fraud is demandable in all obligations. Any waiver of an action for future fraud is void.
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RESPONSIBILITY ARISING FROM FRAUD -demandable with respect to all kinds of obligations . -damages to be awarded cannot be mitigated or reduced as courts are not given the power WAIVER OF ACTION FOR FUTURE FRAUD -void as if there is no waiver WAIVER OF ACTION FOR PAST FRAUD -can can theconsidered an valid waiver be be subject of a act of
generosity and magnanimity
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ARTICLE 1172
Responsibility arising from negligence in performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to 8/5/12 the

RESPONSIBILITY ARISING FROM NEGLIGENCE: -debtor is also liable for damages resulting from his negligence -courts are given the power in fixing the measures of damages
NEGLIGENCE is a question which must necessarily depend upon the circumstances of the particular case.
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Validity of waiver of action arising from Negligence

1. The nature of the obligation requires the

exercise of extraordinary diligence as in the case of common carriers (Art. 1733) par.)

2. Negligence shows bad faith ( Art. 2201 2nd

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Kinds of negligence according to source of obligation 1. Contractual negligence ( culpa contractual)

-negligence in contracts resulting in their breach -makes the debtor liable for damages in view of his negligence in the performance of a preexisting obligation 2. Civil Negligence ( culpa aquiliana) -negligence by itself is the source of obligation between parties not related by any pre-existing contract
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Kinds of negligence according to source of obligation 3. Criminal negligence(culpa criminal)

-negligence resulting in the commission of a crime (Arts 3, 365, Revised Penal Code)

Effects of negligence on the part of the injured party

(recap)

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ARTICLE 1173
The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of 8/5/12 the

Meaning of fault or negligence

FAULT OR NEGLIGENCE: Negligence is the failure to observe for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury
(US v. Barrias, 23 Phil. 434 [1912])

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FACTORS TO BE CONSIDERED
1. NAME OF OBLIGATION 1. CIRCUMSTANCES OF THE PERSON

1. CIRCUMSTANCES OF TIME

1. CIRCUMSTANCES OF THE PLACE

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Kinds of diligence requires

1. Agreed upon by the parties, orally or in

writing

2. In the absence of stipulation, that required

by law in the particular case e.g. extraordinary diligence required of common carriers
3. If both the contract and law are silent, then

the diligence expected of a good father of a family

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