Mora (debtor's default): what it is, when it exists and what consequences it has (articles 1100 to 1103 of the Civil Code)

Mora is the debtor's delay in performing an obligation when that delay is imputable to them. Its general regime in Spain is found in articles 1100 to 1103 of the Civil Code, which answer three questions: when mora exists, what exempts from it and what consequences it produces.

Article 1100 sets the starting point:

"Those obliged to deliver or to do something incur in mora from the moment the creditor demands from them, judicially or extrajudicially, the performance of their obligation."

The general rule is, therefore, that mora does not arise by itself with the due date: the creditor's demand is required - judicial or extrajudicial - because the Code presumes that the debtor may not know that the obligation is already being demanded of them. A bureaufax, a claim or any reliably documented demand fulfils that function, and its date is the one that marks from when the mora runs.

The exceptions: when no demand is needed

Article 1100 itself dispenses with the creditor's demand in two cases:

1. "When the obligation or the law expressly declare so". The parties may agree that the mere due date constitutes mora, and the law imposes it in some cases.
2. "When from their nature and circumstances it follows that the designation of the time at which the thing was to be delivered or the service rendered was the determining reason for establishing the obligation". This is the case of obligations with an essential term: if time was the very reason of the deal, the delay speaks for itself.

Mora in reciprocal obligations

The last paragraph of article 1100 regulates the contract with performances owed by both parties: "In reciprocal obligations neither of the obliged parties incurs in mora if the other does not perform or does not offer to duly perform what is incumbent upon them. From the moment one of the obliged parties performs their obligation, mora begins for the other".

The practical consequence is relevant: in a bilateral contract, whoever has not performed their part cannot claim mora against the other. The creditor's own conduct cures or triggers the debtor's delay.

Mora as an economic tipping point

The constitution of mora changes the debtor's position on several planes at once. From that moment, the delay ceases to be a simple temporary breach and becomes a case of liability: mora is the premise on which default interest and the damages derived from the delay are claimed, and in many contracts it is also the argument that enables termination or acceleration. That is why the dispute over the date of the demand appears in so many lawsuits: a few days' difference in the constitution of the mora can mean a relevant amount at the end of the judgment.

The consequences: wilful misconduct, negligence and delay

Article 1101 connects mora with liability:

"Those who in the performance of their obligations incur in wilful misconduct, negligence or delay, and those who in any way contravene the tenor of those obligations, are subject to compensation for the damages caused."

Defaulting breach thus opens the way to compensation, and the Code then distinguishes according to the type of fault. Liability for wilful misconduct - deliberate breach - cannot be waived, according to article 1102: "Liability arising from wilful misconduct is enforceable in all obligations. The waiver of the action to make it effective is null". In contrast, liability arising from negligence, equally enforceable in all kinds of obligations, "may be moderated by the Courts according to the cases", provides article 1103.

The demand: judicial or extrajudicial

Article 1100 admits two routes to place the debtor in mora, and both produce the same effect. The judicial demand is the claim itself: when it is filed, the creditor formally demands performance, and the debtor is in mora from then on if they were not already. The extrajudicial demand is any prior claim - a bureaufax, a notarial act, a demand before a notary or, in contractual practice, even a clause providing for communications with the effects of a demand - provided its content and its receipt can be proven.

The choice is not minor. Demanding before suing costs little and tidies up the file: it fixes the start of the mora, usually accredits the creditor's diligence and, not infrequently, unblocks payment without the need for a lawsuit. Suing without a prior demand, in contrast, transfers to the litigation a discussion - since when did mora exist - that a bureaufax would have closed in advance.

Due date and mora are not the same thing

A frequent confusion consists in identifying the due date of the obligation with the debtor's mora. They do not necessarily coincide: the due date is the moment at which performance is enforceable, but mora, save for the exceptions of article 1100, additionally requires the creditor's demand. A debtor may be past due without being in mora, and the difference has direct consequences on interest, compensation and the costs of the proceedings.

Hence the first practical decision in the face of a non-payment is not to sue, but to demand in a provable way. The extrajudicial demand - the bureaufax with acknowledgement of receipt and certification of content is the classic instrument - fixes the date from which the delay becomes mora and leaves record that the creditor demanded performance. When the obligation has an essential term or the parties agreed automatic mora, that demand is not necessary for mora to exist, but it remains advisable as evidence.

The balance of the bilateral contract

Although article 1100 deals with the debtor's mora, its last paragraph contains a rule of balance that in practice operates as a defence: in reciprocal obligations, neither of the obliged parties incurs in mora if the other does not perform or does not offer to duly perform what is incumbent upon them. The creditor who has not put in their own performance cannot reproach the other's delay. In sales, works or supply contracts, this rule orders a good part of the litigation: before claiming the other's mora, it is advisable to accredit one's own performance or the serious willingness to perform.

Why it matters in practice

Knowing from when mora exists is not a technical detail: on that instant depend default interest, compensation and, in many contracts, the possibility of termination. Documenting the demand - with a certain date and acknowledgement of receipt - is the cheapest and most decisive operation of any claim for an amount, because it turns a disputable delay into a provable mora.

Sources

• Civil Code, articles 1100 to 1103 (consolidated text, BOE)