From when someone is late: delay and its four exceptions

It is Article 1158, closing the chapter on civil liability, and Articles 1159 to 1162, opening the chapter on the factors attributing liability in the Civil Code of 2020. They fix from when a breach counts as delay and who can be in delay.

Any creditor who wants to put their debtor in delay, and any debtor whose creditor does not accept or does not allow performance. In reciprocal obligations, only the one who has performed or offered to perform can put the other in delay.

• As a rule, demanding performance judicially or extrajudicially: delay begins from that demand.Verified against the official source
• Being in one of the four cases of Article 1160 to dispense with the demand.Verified against the official source
• In reciprocal obligations, having performed or offered to perform what is incumbent on you before requiring the other.Verified against the official source

• The record of the demand for performance, judicial or extrajudicial, because the debtor’s delay runs from it.
• The document of the obligation, because a certain date of performance makes the demand unnecessary.

1. 1

   Step 1: Breaching obliges you to indemnify

   Article 1158 says it in a line and without qualification: a person who in any way contravenes the tenor of their obligation must indemnify the damages caused. "In any way" includes performing late, performing partially and performing badly.

2. 2

   Step 2: Delay begins when you demand

   Article 1159 sets the general rule: the person bound to deliver or to do something incurs delay from when the creditor demands performance of them, judicially or extrajudicially. Going to court is not required: an out-of-court demand works, which is why it is worth having a record of it.

3. 3

   Step 3: Four cases where no demand is needed

   Article 1160 lists them. If the law or the obligation so declares expressly. If the obligation has a certain date for its performance. If the debtor does something forbidden to them but which can be undone. Or if from the nature and circumstances of the obligation it follows that the designation of the time when the thing was to be delivered or the service rendered was a determining reason for constituting it.

4. 4

   Step 4: The certain date is the commonest exception

   Subsection (b) is the one most used in practice: if the obligation has a certain date for its performance, delay exists without a demand. A contract with a delivery or payment date already has the clock built in.

5. 5

   Step 5: And the date that was the point of the deal

   Subsection (d) covers the order whose whole point was the date: if from the nature and circumstances of the obligation it follows that designating the time was a determining reason for constituting it, no demand is needed. It is the delivery that was only any use that day.

6. 6

   Step 6: If the two of you owe each other

   Article 1161 sets the rule for reciprocal obligations: neither obligor incurs delay if the other does not perform or offer to perform what is incumbent on them. And it describes how the deadlock breaks: from when one of the obligors performs or offers to perform their obligation, they may require the other to perform and, from then, delay begins. Offering to perform is enough; full performance is not required.

7. 7

   Step 7: The creditor can be in delay too

   Article 1162 recognizes it in two cases: the creditor incurs delay if they unjustifiably refuse to accept the performance the debtor offers, or if they do not allow the debtor to execute the performance. The second is the creditor who will not cooperate where their cooperation is needed.

The demand for performance may be extrajudicial: a letter, a formal request, any claim of which a record remains. The judicial one is filed before the Court of First Instance. The Code names no agency and no counter here.

• Assuming the delay starts on its own: as a rule performance must be demanded.
• Believing the demand must be judicial: Article 1159 admits the extrajudicial one.
• Demanding verbally and keeping no record of when the demand was made.
• Ignoring that a certain date in the obligation makes the demand unnecessary.
• Overlooking subsection (c): doing something forbidden that can be undone also constitutes delay.
• In a reciprocal obligation, demanding from the other without having performed or offered to perform your own part.
• Assuming you must have fully performed to require the other: offering to perform is enough.
• Forgetting that a creditor who unjustifiably refuses the performance, or will not let it be executed, incurs delay themselves.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov