DELAY, FRAUD, NEGLIGENCE &

CONTRAVENTION OF TENOR

Most causes of action for civil litigations arise out of

the manner by which an obligation is performed or
not performed. Articles 1169 to 1178 are significant
in the sense that they define those circumstances
accompanying the performance or non-performance
of an obligation which can become the basis for a
claim for damages, as well as some of other effects.
Art. 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.
DAMAGES:
PECUNIARY CONSEQUENCES WHICH THE LAW
IMPOSES FOR THE BREACH OF SOME DUTY OR
THE VIOLATION OF SOME RIGHT.
 DELAY
Art. 1169. Those obliged to deliver or to do something incur in
delay from the time the obligee judicially or extrajudicially
demands from them the fulfillment of their obligation.

However, the demand by the creditor shall not be necessary in

order that delay may exist:
(1) When the obligation or the law expressly so declare; or
(2) When from the nature and the circumstances of the obligation it
appears that the designation of the time when the thing is to be
delivered or the service is to be rendered was a controlling motive
for the establishment of the contract; or
(3) When demand would be useless, as when the obligor has
rendered it beyond his power to perform.
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. (1100a)
 EXCEPTIONS-
GENERAL
RULE When the obligation or
the law expressly
Delay by an obligor sets in declares that demand is
when the obligee makes
either a no longer necessary;
*Judicial Demand files a When time is of the
case in court
essence
*Extrajudicial demand
communicates to the obligor When demand is
that he/she is demanding the
performance of the obligation useless
If the obligation is RECIPROCAL in character, neither party
incurs delay if the other has not complied or is not ready in a
proper manner to comply with his undertaking. Delay of one
party begins upon performance by the other of his
undertaking.
DELAY, IN CIVIL LAW, IS MORE THAN
JUST A MATTER OF TIME.
The civil law concept of delay or
default commences from the time
the obligor demands, judicially or
extrajudicially, the fulfillment of the
obligation from the obligee.In legal
parlance, demand is the assertion
of a legal or procedural right.
But mere delinquency in payment does
not necessarily mean delay in the legal
concept. To be in default ". . . is
different from mere delay in the
grammatical sense, because it
involves the beginning of a special
condition or status which has its
own peculiar effects or results." In
order that the debtor may be in default
it is necessary that the following
requisites be present: (1) that the
obligation be demandable and already
liquidated; (2) that the debtor delays
performance; and (3) that the creditor
requires the performance judicially and
extrajudicially. Default generally
begins from the moment the creditor
demands the performance of the
obligation.
 FORM OF EXTRAJUDICIAL
DEMAND
The demand required in Article 1169 of the
Civil Code may be in any form, provided that it
can be proved. The proof of this demand lies
upon the creditor. Without such demand, oral
or written, the effects of default do not arise.
This demand is different from the demand
required under Section 2, Rule 70, which is
merely a jurisdictional requirement before an
existing cause of action may be pursued.(Cetus
Development Corporation vs. Court of Appeals,
G.R. No. 77647 to 77652, August 7, 1989)
 Go
ing
La
tin
The Latin :
term for
DELAY is
MORA is of three (3)
MORA. kinds:
MORA SOLVENDI
MORA ACCIPIENDI &
COMPENSATIOU
MORAE
Mora solvendi,or debtors default, is defined
as a delay] in the fulfillment of an obligation,
by reason of a cause imputable to the
debtor.[ There are three requisites necessary
for a finding of default.First,the obligation
is demandable and liquidated; second,the
debtor delays performance;third,the
creditor judicially or extrajudicially requires
the debtors performance. (Selegna
Management and Development Corporation , et al. vs.
United Coconut Planters Bank, G.R. No. 165662, May
03, 2006, footnotes omitted.)
n
A debt is liquidated when the
i s a
When ion amount is known or is
a t
oblig red determinable by inspection of the
s i d e
co n terms and conditions of the
u i d a ted?
li q relevant promissory notes and
related documentation.
Mora accipiendi, relates to delay on the part of the
obligee in accepting the performance of the obligation by
the obligor.

The requisites ofmora accipiendiare: an offer of

performance by the debtor who has the required
capacity; the offer must be to comply with the prestation
as it should be performed; and the creditor refuses the
performance without just cause. (A. TOLENTINO, IV CIVIL
COMPENSATION MORAE default on
CODE OF THEPHILIPPINES(1991
the part of ed.), at 108) as in when
both parties,
the obligations are reciprocal in
nature. The mutual inaction of parties
gives rise to acompensation
moraeor default on the part of both
parties because neither has
completed their part in their
reciprocal obligation. (See Cortes vs.
Court of Appeals, G.R. No. 126083,
July 12, 2006)
 Bad fa
refers to all kinds of ith, o
hand, n the
import other
deception -- whether purpos s a di
e or shones
obliqui some t
through insidious doing
ty and
c
m oral
onsciou
of a s
machination, manipulation, simply
bad ju
wrong,
not
neglige dgmen
concealment or synony
nce. t or
mous w It
misrepresentation -- that it ith fra
ud, in
is
in
that would lead an mislead volves a desi
o r d ec e gn to
ive ano
ordinarily prudent person ther.
into error after taking the
circumstances into account.

[Solidbank Corporation v. Mindanao Ferroalloy

Corporation, et al, G.R. No. 153535, July 28, 2005.]
In general, fraud may be defined as the voluntary
execution of a wrongful act, or a wilfull omission,
knowing and intending the effects which naturally and
necessarily arise from such act or omission; the fraud
referred to in Article 1170 of the Civil Code of the
Philippines is the deliberate and intentional evasion of
the normal fulfillment of obligation.
 DOLO CAUSANTE & INCIDENTE
DISTINGUISHED
DOLO CAUSENTE DOLO INCIDENTE
DOLO INCIDENTE
In contracts, a fraud known as In
In contradistinction,
contradistinction, only
only
dolo causante or causal fraud some particular
some particular oror accident
accident of
of
is basically a deception used the obligation
the obligation is
is referred
referred to
to by
by
by one party prior to or incidental fraud
incidental fraud oror dolo
dolo
simultaneous with the incidente, or
incidente, or that
that which
which is
is not
not
contract, in order to secure the serious in
serious in character
character and
and
consent of the other. Needless without which
without which the
the other
other party
party
to say, the deceit employed would have
would have entered
entered into
into the
the
must be serious. contract anyway.
contract anyway.

Fraud must be established by clear and

convincing evidence; mere
How can preponderance of evidence is not
the adequate.
existence [Solidbank Corporation v. Mindanao Ferroalloy Corporation,
of fraud be et al, G.R. No. 153535, July 28, 2005.]
establishe
 Go
ing
La
tin
The Latin
term for There
a
:
of dol re two kin
o- ds
FRAUD is 1) DO
LO CA
USAN
DOLO. or cau
sal fra TE
ud &
2) DO
LO IN
or inc CI
identa DENTE
l fraud
Art. 1171. Responsibility arising from fraud
is demandable in all obligations. Any
waiver of an action for future fraud is void.
To summarize, if there is fraud in the
performance of the contract, then this fraud
will give rise to damages. If the fraud did not
compel the imputing party to give his or her
consent, it may not serve as the basis to
annul the contract, which exhibits dolo
causante. However, the party alleging the
existence of fraud may prove the existence of
dolo incidente.
This may make the party against whom fraud
is alleged liable for damages. (Tankeh vs. Court
of Appeals, et al., G.R. No. 171428, November 11, 2013)
 NEGLIGENCE
Article 1173 provides that 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.
 DILIGENCE IN THE
PERFORMANCE OF OBLIGATIONS

When the law or contract does There are some cases, as when
not require otherwise, the law or contract provides, that
diligence required in the more than ordinary diligence is
performance of obligations is required. Extraordinary
that of a good father of a diligence relates to that
family or in Latin, extreme measure of care and
diligentissimi patris caution which persons of unusual
familias This is ordinary prudence and circumspection
diligence. It is that kind of observe for securing and
diligence that is expected of a preserving their own property or
person in charge of his own rights. [National Trucking and
family that he handles all their Forwarding Corporation v.
affairs with care and prudence. Lorenzo Shipping Corporation,
491 Phil. 151, 156 (2005)]
 The Concept of Fortuitous Event
Art. 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. (1105a)
 CA
SO
FO
RT
REQUISITES FOR A CASO FORTUITO TO
EXEMPT OBLIGOR FROM LIABILITY

(a) the cause of the unforeseen and

unexpected occurrence, or the failure
of the debtors to comply with their
obligations, must have been
independent of human will;
(b) the event that constituted thecaso
fortuitomust have been impossible to
foresee or, if foreseeable, impossible
to avoid;
(c) the occurrence must have been such
as to render it impossible for the
debtors to fulfill their obligation in a
normal manner; and
(d) the obligor must have been free
from any participation in the
aggravation of the resulting injury to
the creditor.
U IT
KINDS OF CASO FORTUITO
O
1) Acts of God - if it is due to a
natural occurrence , like hurricanes
2) Force Majeure if it is caused by
man, like war
CLASSIFICATIONS:
a) Ordinary events that normally
happen, foreseeable but still
inevitable.
b) Extraordinary events that cannot
be foreseen and dont usually
happen.