In an obligation not to do, the duty of the obligor is to

abstain from an act. Here, there is no specific performance. The

very obligation is fulfilled in not doing what is forbidden. Hence,
in this kind of obligation the debtor cannot be guilty of delay.
(Art. 1169, NCC)
As a rule, the remedy of the obligee is the undoing of
the forbidden thing plus damages. However, if it is not possible to
undo what was done, either physically or legally, or because of
the rights acquired by third persons who acted in good faith, or
for some other reason, his remedy is an action for damages
caused by the debtor’s violation of his obligation.

Example:
Ron bought a land from Harry. It was stipulated that
Harry would not construct a fence on a certain portion of his
land adjoining that sold to Ron.
Should Harry construct a fence in violation of the
agreement, Ron can bring an action to have the fence
removed at the expense of Harry.
 When Demand is Not Needed to Put
Debtor in Default
a. When the law so provides (Example: Taxes should be paid
within a definite period, otherwise penalties are imposed without
need of demand for payment)
b. When the obligation expressly so provides
c. When time is of the essence of the contract (or when the
fixing of the time was the controlling motive for the
establishment of the contract)
d. When demand would be useless, as when the obligor has
rendered it beyond his power to perform. (Example: When
before the maturity, the seller has disposed of it in favor of
another, or has destroyed the subject matter, or is hiding)
e. When the obligor has expressly acknowledged that he really is
in default (But it should be noted that his mere asking for
extension of time is not an express acknowledgement of the
existence of default on his part)
 Different Kinds of Mora
a. mora solvendi (default on part of the debtor)
1. mora solvendi ex re (debtor’s default in real obligations)
2. mora solvendi ex persona (debtor’s default in personal
obligations)

b. mora accipiendi (default on part if the creditor)

c. compensatio morae (when in a reciprocal obligation both

parties are in default; here it is as if neither is in dafault)
 Requisites for mora solvendi
1. The obligation must be due, enforceable, and
already liquidated or determinate in amount.
2. There must be non-performance
3. There must be a demand, unless the demand is
not required (as already discussed). (When
demand is needed, proof of it must be shown by
the creditor)
4. The demand must be for the obligation that is due
(and not for another obligation, nor one with a
bigger amount, except in certain instances,
considering all the circumstances)
 Mora Accipiendi
a. The creditor is guilty of default when he unjustifiably refuses to
accept payment or performance at the time said payment or
performance can be done. Some justifiable reasons for refusal
to accept may be that the payor has no legal capacity or that
there is an offer to pay an obligation other than what has been
agreed upon.
b. If an obligation arises ex delicto (as a result of a crime), the
debtor-criminal is responsible for loss, even though this be
through a fortuitous event, unless the creditor is in mora
accipiendi.
 Reciprocal Obligations
a. Reciprocal obligations depend upon each other for
performance (Example: In a sale, the buyer must PAY, and
the seller must DELIVER)
b. Here performance may be set on different dates. (Example:
delivery date on Dec. 9, 2005; and payment on Dec. 13, 2005.
To put the seller in default, demand as a rule must be made.
Delivery upon the other hand, does not put the buyer in
default, till after demand, unless demand is not required. This
is because, in the example given, different periods for
performance were given)
c. If the performance is not set on different dates, either by the
law, contract, or customs, it is understood that performance
must be simultaneous. Hence, one party cannot demand
performance by the other, if the former himself cannot
perform. And when neither has performed , there is
compensatio morae (default on part of both; so it is as if no
one is in default). If one party performs and the other does
not, the latter would be in default.
 ART. 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 liable for
damages. (Art. 1170, NCC)
Grounds for Liability
1. Fraud (deceit or dolo) – as used
in Article 1170, it is the deliberate or
intentional evasion of the normal
fulfillment of the obligation. As a
ground for damages, it implies
some kind of malice or dishonesty
and it cannot cover cases of
mistake and errors of judgment
made in good faith. It is
synonymous to bad faith.
 Article 1170 refers to
incidental fraud (dolo incidente)
committed in the performance of
an obligation already existing
because of contract. It is to be
differentiated from casual fraud
(dolo causante) or fraud employed
in the execution of a contract
under Article 1338, which vitiates
consent.
 2. Negligence (fault or
culpa) – it is any voluntary
act or omission, there being
no malice, which prevents
the normal fulfillment of an
obligation. (see Arts. 1173,
1174, NCC)