BAC 2 LESSON 3

Meaning of Delay

-As used in the law, is not to be understood according to its meaning in common parlance. So,
we will see the distinction between ordinary delay and legal delay in the performance of an
obligation.

a. Ordinary Delay
- the failure to perform an obligation on time.
b. Legal Delay of Default or Mora
- - is the failure to perform an obligation on time which failure constitute a
breach of the obligation.

Kinds of Delay or Fault:

1. Mora Solvendi
- delay on the part of the debtor to fulfill his obligation ( to give or to do)
2. Mora Accipiendi
- delay on the part of the creditor to accept the performance of the obligation
3. Compensatio Morae
- delay of the obligor in reciprocal obligations
ex: sale. . . the delay of obligor/debtor cancel the delay of the obligee (creditor),
and vice versa

Requisites of delay by the debtor-or-3 conditions that must exist before mora solvendi arise:
1. failure of the debtor to perform his (positive) obligation on the date agreed upon.
2. demand (not more reminder or notice) made by the creditor upon the debtor to comply
with his obligation which demand may either judicial or extra-judicial
3. failure of the debtor to comply with such demand.

“ NO DEMAND, NO DELAY”
however, these are exceptions, meaning - -
“When is demand not necessary to put debtor in delay : (art.1169)

1. when the obligation so provides

ex: D promised to pay C 1M on or before Nov. 30 without the need of any demand

2. when the law so provides

ex: law on taxes
3. when the time is of the essence
ex: making of wedding dress where the wedding is scheduled at a certain time
4. when demand would be useless
5. when there is performance by a party in reciprocal obligation.
 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 liable for
damages.

So, Art. 1170 Tells us the grounds for liability:

1. Fraud (deceit or dolo)

- it Is the deliberate or intentional evasion of the normal fulfillment of an
obligation
- it implies some kind of malice or dishonesty
- it is synonymous to bad faith in that, it involve sa design to mislead or deceive
another
2. Negligence (fault or culpa)
- it is any voluntary act or omission, there being no bad faith or malice, which
prevents the normal fulfillment of an obligation.
3. Delay (mora)
4. Contravention of the terms of the obligation
- it is the violation of the terms and conditions stipulated in the obligation

FRAUD distinguished from NEGLIGENCE

-there is deliberate intent to cause damage or injury -there is no intention

-waiver of liability for future fraud is void -such waiver in certain sense, is allowed

-must be clearly proved -it is presumed from the violation of

contracted obligation

-liability can not be mitigate or reduced by the courts -liability may be reduced according to
circumstances

Article 1171

Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for
future fraud is void
 Meaning of

FAULT OR NEGLIGENCE

- is the failure to observe for the protection of the interest of another person thus the
absence of the absence of that degree of care, precaution and vigilance which the
circumstance justly demands.
- factors to be considered:
1. Nature of obligation
ex: smoking while carrying inflammable materials

2. Circumstances of the person

ex: a guard, robust and healthy, sleeping while on duty.

3. Circumstances of time
ex: driving a car without headlights at night

4. Circumstances of the place

ex: driving at 100 km per hour in Ayala Avenue in Makati.

ARTICLE 1174 Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when
the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which
could not be foreseen, or which though foreseen, were inevitable.

Meaning of

FORTUITOUS EVENT

- it is any event which cannot be foreseen, or which, through foreseen, is inevitable.

- can be:
a. acts of man – independent of the obligor’s will but not of other human will
ex: war, fire, robbery, murder, insurrection
b. Acts of God
-known as force majeure
-events which are totally independent of the will of every human being
example: flood, rain, shipwreck, lightning

PRESUMPTION
- is the inference of a fact not actually known arising from its usual connection with
another which is known or proved.
- kinds of presumption:
1. Conclusive presumption – one which can not be contradicted
ex: art. 3
2. disputable (or rebuttable) presumption – one which can be contradicted or rebutted
by presenting proof.
 EXTINGUISHMENT OF OBLIGATIONS

ARTICLE 1231. Obligations are extinguished:

(1) By payment or performance;

(2) By the loss of the thing due;
(3) By the condonation or remission of the debt.
(4) By the confusion or merger of the rights of creditor and debtor
(5) By compensation
(6) By novation

Other causes of extinguishment of obligations, such as annulment, rescission,

fulfillment of a resolutory condition, and prescription, are governed elsewhere in this
code.

Payment or Performance
 In law, payment and performance are synonymous
 the prestation must be completely delivered or rendered. ( integrity of prestation)
 general rule is partial or irregular performance will not produce extinguishment of an obligation.

4 Special Forms of Payments:

1. dation in payment (adjudication or dacion en pago)

- property is alienated or ownership of a thing is conveyed to the creditor to
extinguish the obligation
- governed by the law of sales.
2. Application of Payment
- the designation of the debt to which should be applied the payment made by a
debtor who has various debts of the same kind in favor of one and the same
creditor
3. Payment by cession
- is the assignment or abandonment of all the properties of the debtor for the
benefit of his creditor in order that the latter (creditor) may sell the same & apply
the proceeds to satisfy the credit.
4. Tender of payment and consignation.

Tender of payment

- act on the part of debtor, of offering to the creditor the thing or amount due

Consignation

- the act of depositing the thing or amount due with the proper court when the
creditor does not desire or cannot receive it.
Loss of the thing due
-requirement in order that the loss of thing will extinguished an obligation to give:

a. the obligation is to deliver a specific or determinate thing

b. the loss of the thing occurs without the fault of the debtor; and
c. the debtor is not guilty of delay

Condonation or Remission of Debt

- is the gratuitous abandonment by the creditor of his right against the debtor
- it is then a form of donation
- it is
a. inter vivos when it will take effect during the lifetime of the donor
b. mortis causa – when it will become effective upon the death of the donor,
so it must comply with the formalities of a will.

Confusion or Merger of rights

- is the meeting in one person of the qualities pf creditor and the debtor with
respect to the same obligation

Compensation

- the extinguishment to the concurrent amount of the debts of 2 persons who, in

their own right are debtor and creditors of each other.

Novation

- is the total or partial extinction of an obligation through the creation of a new

one which substitute it
- it is either *changing the object or principal conditions or
*substituting another in place of the debtor