When does delay or default arise?
Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extra-judicially demands from them the fulfilment of their obligation. In reciprocal obligations, neither party incurs in delay if the other does not comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligations, delay by the other begins. (Art. 1169, NCC)
What are the requisites of delay?
1. Obligation must be due, demandable and liquidated;
2. Debtor fails to perform his positive obligation on the date agreed upon;
3. A judicial or extra-‐judicial demand made by the creditor upon the debtor to fulfill, perform or comply with his obligation; and
4. Failure of the debtor to comply with such demand. Note: In reciprocal obligations, the moment one party is ready to comply with his obligation, delay by the other begins. There is no need for demand from either party.
What are the kinds of delay or default?
1. Mora solvendi – default on the part of the debtor/obligor
a. Ex re – default in real obligations (to give)
b. Ex personae – default in personal obligations (to do)
2. Mora accipiendi – default on the part of the creditor/obligee
3. Compensatio morae – default on the part of both the debtor and creditor in reciprocal obligations