8. Non-Performance of Obligations Flashcards
Non-performance fo an obligation occurs…
…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.
Types of non-performance:
a) Total breach.
b) Defective performance.
c) Debtor’s delinquency.
Types of liabilities for non-performance/attribution for non-performance:
a) fault.
b) deceit.
Explain total breach:
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.
What is defective performance?
The performance is not adequate to what agreed, because it is defective or partial.
Are loss of the thing due and sudden impossibility defective performance?
No, they are total breach, as they cannot be performed in the future.
What can the creditor do in the case of defective performance?
He can ask for the termination of the obligatory relationship or refuse to perform his obligation until the correct performance by the debtor.
Consequences of non-performance:
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.
What is debtor’s delinquency:
When the debtor has not performed in time, but performance is still possible and can satisfy the creditor’s interests.
Does the delay of performance automatically entail delinquency for the debtor?
No, it has to meet some requirements for it to be considered as such.
Requirements for the delay of performance to be considered as debtor’s delinquency:
- It has to be an obligation to give or do something.
- The obligation has to be liquid or expired.
- Delay due to the debtor’s negligence or attributable to him.
- 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.
What are the effects of debtor’s delinquency?
- The creditor is entitled to ask for performance + damages.
- 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.
- 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.
When does the debtor’s delinquency end?
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.
What is fault or negligence?
The lack of diligence in the performance of obligations (when a person is carelessness).
How is fault presumed/to be proven in the cases of negligence or fault?
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.
What is deceit?
The conscious act of the debtor who does not perform his obligation.
How is fault presumed/to be proven in the cases of deceit?
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.
What are acts of god/force majeure events?
Events out of the debtor’s control and which prevent him from performing his action.
How is fault presumed/to be proven in the cases of acts of god/force majeure events?
They must be proven by the debtor.
Who is liable in the cases of acts of god/force majeure events?
No one.
Requisites in order to liberate the debtor in cases of acts of god/force majeure events:
- Event beyond the field of control of the debtor.
- Event which makes it impossible for the debtor to fulfil his obligation.
- There has to be a link between the impossibility of fulfilment and the event.
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?
NO. He won’t be liberated from the obligation to opay for damages.
Effects of an act being a acts of god/force majeure events:
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.
If the specification has not taken place when an “acts of god/force majeure events” takes place, does he still have to perform?
Yes. He does not lack liability. He can still perform with things of the same quality and kind.
