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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,
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
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. 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.