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Obligations and Contracts

Article 1169.

Meaning of Delay

The word DELAY, as used in the law, is not to be understood according to its meaning in common parlance.
A distinction, therefore, should be made between ordinary delay (default or mora) in the performance of an
obligation,

Ordinary Delay – the failure to perform an obligation on time


Legal delay or default – failure to perform an obligation on time which failure constitutes a breach of the
obligation.

Requisites of Delay by the Debtor

Mora Solvendi (delay on the part of the debtor to fulfill his obligation (to give or to do)

Three conditions that must be present before mora solvendi can exist or its effects may arise:

1. Failure of the debtor to perform his (positive) obligation on the date agreed upon;
2. Demand (not mere reminder or notice) made by the creditor upon the debtor to comply with his
obligation which demand may be either judicial (when a complaint is filed in court) or extrajudicial
(when made outside of court, orally or in writing); and
3. Failure of the debtor to comply with such demand.

The above presupposes that the obligation is already due and demandable. The creditor has the burden of
proving that demand has been made. Similarly, it is incumbent upon the debtor to prove that the delay was
not caused by his fault to relieve himself from liability.

Effects of Delay

A. Effects of MORA SOLVENDI

1. The debtor is guilty of breach or violation of the obligation.


2. He is liable to the creditor for interest (in case of obligations to pay money) or damages (in other
obligations.
3. He is liable even for a fortuitous event when the obligation is to deliver a determinate thing. However,
if the debtor can prove that the loss would have resulted just the same even if he had not been in
default, the cour may equitably mitigate or reduce the damages

In an obligation to deliver a generic thing, the debtor is not relieved from liability for loss due to a
fortuitous event He can still be compelled to deliver a thing of the same kind or held liable for damages.

A. Effects of MORA ACCIPIENDI

1. The creditor is guilty of breach of obligation;


2. He is liable for damages suffered, if any, by the debtor;
3. He bears the risk of loss of the thing due;
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4. Where the obligation is to pay money, the debtor is not liable for interest from the time of creditor’s
delay; and
5. The debtor may release himself from the obligation by the consignation or deposit in court of the thing
or sum due

A. In COMPENSATIO MORAE, the delay of the obligor cancels the delay of the obligee and vice versa.
The net result is that there is no fault or delay on the part of both parties.

If the delay of one party is followed by that of the other, the liability of the first infractor shall be equitably
tempered or balanced by the courts. If it cannot be determined which of the parties is guilty of delay, the
contract shall be deemed extinguished and each shall bear his own damages.