8. Non-Performance of Obligations

Question 1

Non-performance fo an obligation occurs…

Answer 1

…when the right of the creditor is not satisfied because the performance due does not take place.
It can be that the obligation is not performed at all, or that performance does not adapt to what the parties agreed.

Question 2

Types of non-performance:

Answer 2

a) Total breach.
b) Defective performance.
c) Debtor’s delinquency.

Question 3

Types of liabilities for non-performance/attribution for non-performance:

Answer 3

a) fault.
b) deceit.

Question 4

Explain total breach:

Answer 4

When the debtor has not performed his obligation and he cannot perform in the future because it is no longer possible or because it does not satisfy the creditor’s interests anymore.

Question 5

What is defective performance?

Answer 5

The performance is not adequate to what agreed, because it is defective or partial.

Question 6

Are loss of the thing due and sudden impossibility defective performance?

Answer 6

No, they are total breach, as they cannot be performed in the future.

Question 7

What can the creditor do in the case of defective performance?

Answer 7

He can ask for the termination of the obligatory relationship or refuse to perform his obligation until the correct performance by the debtor.

Question 8

Consequences of non-performance:

Answer 8

a) If it is a result of the debtor’s will: compulsory performance + damages; if compulsory performance is not possible: damages.
b) It it is not a result of the debtor’s will: no debtor’s liability.

Question 9

What is debtor’s delinquency:

Answer 9

When the debtor has not performed in time, but performance is still possible and can satisfy the creditor’s interests.

Question 10

Does the delay of performance automatically entail delinquency for the debtor?

Answer 10

No, it has to meet some requirements for it to be considered as such.

Question 11

Requirements for the delay of performance to be considered as debtor’s delinquency:

Answer 11

1. It has to be an obligation to give or do something.
2. The obligation has to be liquid or expired.
3. Delay due to the debtor’s negligence or attributable to him.
4. The creditor has judicially or extra-judicially demanded performance (interpellation). It is not necessary if:
   a) the law or the obligation provides so, or,
   b) if it can be inferred that the determination of a performance time was essential in order to establish the obligation.

Question 12

What are the effects of debtor’s delinquency?

Answer 12

1. The creditor is entitled to ask for performance + damages.
2. The debtor is responsible for the non-performance even if it was not possible due to an Act of God or a Force Majeure event, and he shall pay damages.
3. The debtor still has to fulfil his obligation and shall have to pay a compensation for damages.
   If the obligation is a monetary obligation, the compensation for damages shall consist of the interest agreed or if there was not an agreement in this regard, of the legal interest.

Question 13

When does the debtor’s delinquency end?

Answer 13

a) If there is creditor’s delinquency.
b) If a new deadline is granted by the creditor or a judge (moratorium).
c) If the creditor fees any action against the debtor: the creditor renounces to the effects of the debtor’s delinquency once it has happened; tells him not to fulfil never.

Question 14

What is fault or negligence?

Answer 14

The lack of diligence in the performance of obligations (when a person is carelessness).

Question 15

How is fault presumed/to be proven in the cases of negligence or fault?

Answer 15

a) Obligations to give a thing in the debtor’s possession: the debtor has to proof that his conduct was diligent.
b) Obligations to do something: the creditor has to proof the negligence of the debtor.

Question 16

What is deceit?

Answer 16

The conscious act of the debtor who does not perform his obligation.

Question 17

How is fault presumed/to be proven in the cases of deceit?

Answer 17

The action to enforce liability cannot be waived (can’t be denied by the debtor), and has to be proven by the creditor, it is never presumed.

Question 18

What are acts of god/force majeure events?

Answer 18

Events out of the debtor’s control and which prevent him from performing his action.

Question 19

How is fault presumed/to be proven in the cases of acts of god/force majeure events?

Answer 19

They must be proven by the debtor.

Question 20

Who is liable in the cases of acts of god/force majeure events?

Answer 20

No one.

Question 21

Requisites in order to liberate the debtor in cases of acts of god/force majeure events:

Answer 21

1. Event beyond the field of control of the debtor.
2. Event which makes it impossible for the debtor to fulfil his obligation.
3. There has to be a link between the impossibility of fulfilment and the event.

Question 22

If the debtor had power to control the event and did not do his best efforts in order to do so, is it still considered as a acts of god/force majeure events?

Answer 22

NO. He won’t be liberated from the obligation to opay for damages.

Question 23

Effects of an act being a acts of god/force majeure events:

Answer 23

Debtor is released from fulfilment and from liability for the damages caused UNLESS:
a) Otherwise agreed by the parties.
b) Cases established by the law.
c) If partial performance is possible, obligation must be partially performed.
d) Creditor must benefit from the advantages.

Question 24

If the specification has not taken place when an “acts of god/force majeure events” takes place, does he still have to perform?

Answer 24

Yes. He does not lack liability. He can still perform with things of the same quality and kind.

Question 25

What is compulsory performance?

Answer 25

Ask for the performance as it was originally agreed
+ damages. If compulsory performance is not possible, he can ask for the equivalent in money + compensation for damages.

Question 26

What can the creditor ask in obligations to give something (compulsory performance)?

Answer 26

a) Specific thing: delivery of such thing.
b) Generic thing: ask for the obligation to be fulfilled at the expense of the debtor.

Question 27

What can the creditor ask in obligations to do something (compulsory performance)?

Answer 27

a) If based on the debtor’s personal characteristics: debtor has to fulfil.
b) If not based on the debtor’s personal characteristics: the obligation has to be performed by a third person at the expense of the debtor.

Question 28

What can the creditor ask in obligations to not-do something (compulsory performance)?

Answer 28

a) material object: the thing told to not be done was done: can be ask to be undone. If he cannot undo it, the debtor shall pay damages.
b) legal act.

Question 29

What do damages consist of?

Answer 29

1. Value of the loss.
2. Loss of profits or gains from the thing.

Question 30

No matter which kind of non-performance has taken place, if it is attributable to the debtor, any kin of unfulfilling debtor shall gave to compensate the creditor if his breach of obligation caused damages.

Answer 30

Yes.

Question 31

By who shall the damages be proven?

Answer 31

Creditor.

Question 32

In bilateral obligations, if one of the parties does not perform his obligations, the prejudiced creditor can…

Answer 32

a) Action for performance.
b) Termination of the agreement.
With compensation for damages in both cases.

Question 33

The action of termination of the contract in bilateral obligations has to be done judicially.

Answer 33

No. It can be done extra-judicially. The party prejudiced may send a notice to the other party stating that he considers the relation terminated.

Question 34

Requirements for termination to be possible:

Answer 34

1. The party that claims the termination should have performed his part of the agreement OR has to be in position to perform it OR his non-performance has to be caused by the non-performance of the other party.
2. The obligation which is the base of the claim for termination has to be the principal obligation.
3. The obligation breached has to be expired.

Question 35

Only severe non-performance gives rise to termination.

Answer 35

Yes.

Question 36

Deadline for the action of termination to be brought:

Answer 36

5 years.

Question 37

Termination is possible in the case of partial non-performance.

Answer 37

Yes.

Question 38

Effects of termination:

Answer 38

1. Both reciprocal obligations are terminated.
2. Retroactive effects: the obligatory relation is extinguished as if it did not exist.
3. Restituory effects: parties have to return to each other anything they had exchanged as a consequences of the termination of the obligatory relation.
4. A judge can grant a new term.
5. Protection of third party acquirers who acted in good faith.