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


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


-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


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.


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

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