Download - ART. 1169-1173upload
DELAY IN PERFORMANCE OF
OBLIGATIONS
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.
ARTICLE 1169
ACCORDING TO LAW:1. Ordinary delay
the failure to perform an obligation on time2. Legal delay (default or mora)
the failure to perform an obligation on time which failure constitutes a breach of the obligation
What is ?delay
Art. 1169
-the delay on the part of the debtor
TYPES OF MORA SOLVENDI1. Mora Solvendi Ex re – default in real
obligations2. Mora Solvendi Ex persona – default in
personal obligations
Kinds of delay or default:Mora Solvendi
Art. 1169
REQUISITES:1. The obligation must be due, enforceable and
already liquidated or determinate in amount;
2. There must be non-performance; and3. There must be a demand
Kinds of delay or default:Mora Solvendi
Art. 1169
EFFECTS:1. Debtor is guilty of breach of the obligation2. 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.
3. 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. 2215[4])
4. Resolution (Art 1170, in proper cases)
Art. 1169
Kinds of delay or default:Mora Solvendi
-default on part of creditor when he unjustifiably refuses to accept the performance of the obligation.REQUISITES:1. Offer of performance by the debtor2. Offer must be to comply with the prestation
as it should be performed3. Creditor refuses the performance without
just cause
Kinds of delay or default:Mora Accipiende
Art. 1169
EFFECTS:1. The creditor is guilty of breach of the
obligation2. Liable for damages, suffered, if any by the
debtor3. He bears the risk of loss of the thing due
(Art. 1262)4. If the obligation is to pay money, the debtor
is not liable for the interest from time delay5. The debtor may relieve himself of the
obligation by consigning in court the thing or sum due Art.
1169
Kinds of delay or default:Mora Accipiende
-both parties are in default in reciprocal obligations there is no actionable default on the part of both partiesRule 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 different dates for the performance.
Kinds of delay or default:Compensatio Morae
Art. 1169
1. When the obligation so provides 2. When the law so provides
3. When time is of the essence
When demand is not necessary to put the debtor in delay
Art. 1169
4. When demand would be useless
5. When there is performance by a party in reciprocal obligations
When demand is not necessary to put the debtor in delay
Art. 1169
The grounds for liability in the non-performance 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
GROUNDS FOR DAMAGES FOR NON-PERFORMANCE OF
OBLIGATIONS
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.
ARTICLE 1170
“ The deliberate or intentional evasion of the normal fulfillment of an obligation”
-synonymous to bad faithTYPES OF FRAUD:1. Incidental fraud ( dolo incidente) Art. 1170 2.Causal fraud ( dolo causante) Art. 1338
fraud employed in the execution of the contract
Grounds for Liability: Fraud ( deceit or dolo)
Art. 1170
Art. 1170 – Incidental fraud committed in the performance of an obligation already existing because of contract.
REMEDIES OF DEFRAUDED PARTY:1. Insist on specific performance (Art 1233)2. Resolve contract (Art 1191)3. Claim damages, in either case
Grounds for Liability: Fraud ( deceit or dolo)
Art. 1233 - A debt shall not be understood tohave been paid unless the thing or service in which the obligation consists has been completely delivered or rendered, as the case may be.
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 seek rescission, even after he has chosen fulfillment, if the latter should become impossible
Art. 1170
“ Any voluntary act or omission, there being no malice, which prevents the normal fulfillment of an obligation”KINDS OF NEGLIGENCE:1. Quasi-Delict (Culpa aquiliana/culpa extra contractual)- source of obligation2. Contractual Negligence (Culpa Contractual)-negligence in the performance of a contract
Grounds for Liability: Negligence ( fault or culpa)
Art. 1170
CULPA AQUILIANANegligence is substantive
and independentThere may or may not be
pre-existing contractual obligation
Source of obligation is the negligence itself
Negligence must be provedDiligence in the selection
and supervision of the employees is a defense
Negligence merely an incident of performance of an obligation
There is a pre-exiting contractual relation
Source of the obligation is the breach of contractual obligation
Proof of existing of contract and its breach is prima facie sufficient to warrant recovery
Diligence in the selection of the employees is not available as a defense
Grounds for Liability: Negligence ( fault or culpa)
CULPA CONTRACTUAL
Art. 1170
EFFECTS OF CONTRIBUTORY NEGLIGENCE OF THE CREDITORGENERAL RULE: Reduces or mitigates the damages which he can recoverEXCEPTION: 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.
Grounds for Liability: Negligence ( fault or culpa)
Art. 1170
- Discussed under Article 1169
Grounds for Liability: Delay ( mora)
Art. 1170
“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)
Grounds for Liability: Contravention of the terms of the obligation
Art. 1170
Art. 1170
FRAUDThere is deliberate
intention to cause damage
Liability cannot be mitigated
Waiver for future fraud is void
It must be clearly proved while
There is no deliberate intention to cause damage
Liability may be mitigated
Waiver for future negligence may be allowed in certain cases
It is presumed from the violations of a contractual obligation
Grounds for Liability: Fraud and Negligence distinguished
NEGLIGENCE
Responsibility arising from the fraud is demandable in all
obligations. Any waiver of an action for future
fraud is void.
ARTICLE 1171
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 powerWAIVER OF ACTION FOR FUTURE FRAUD
-void as if there is no waiverWAIVER OF ACTION FOR PAST FRAUD
-can be the subject of a valid waiver
can be considered an act of generosity and magnanimity
Art. 1171
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 the
circumstances.
ARTICLE 1172
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
Art. 1172
NEGLIGENCE is a question which must necessarily depend upon the circumstances of the particular case.
1. The nature of the obligation requires the exercise of extraordinary diligence as in the case of common carriers (Art. 1733)
2. Negligence shows bad faith ( Art. 2201 2nd par.)
Validity of waiver of action arising from Negligence
Art. 1172
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 pre- existing obligation2. Civil Negligence ( culpa aquiliana)
-negligence by itself is the source of obligation between parties not related by any pre-existing contract
Kinds of negligence according to source of obligation
Art. 1172
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)
Kinds of negligence according to source of obligation
Art. 1172
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 the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of.
ARTICLE 1173
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”
Meaning of fault or negligence
(US v. Barrias, 23 Phil. 434 [1912])
Art. 1173
1. NAME OF OBLIGATION
2. CIRCUMSTANCES OF THE PERSON
3. CIRCUMSTANCES OF TIME
4. CIRCUMSTANCES OF THE PLACE
FACTORS TO BE CONSIDERED
Art. 1173
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
Kinds of diligence requires
Art. 1173