Moroseness

MOROSENESS. - From the Latin mora, delay, it is the unjustified delay or postponement in the fulfillment of an obligation. This unjustified delay can have repercussions in the ethical and juridical field. Moralists distinguish m. arising from the failure to return a thing unjustly possessed, from m. for non-fulfillment of an obligation assumed by contract; civil lawyers, on the other hand, speak more generally of the failure to perform a due prestation. The law, moreover, considers only juridical culpability, prescinding in itself from voluntariness, whereas in morals theological culpability prevails.

I. MOROSENESS UNDER THE ETHICAL ASPECT

The case of m. occurs: 1) when from the culpable non-fulfilment, with respect to the fixed time, of an obligation assumed by bilateral contract, a loss results to the other party; 2) when from the failure to return a thing possessed in bad faith a loss results to the true owner. In both cases theological guilt is presupposed and the loss must have actually occurred (it is then said that the debtor is "in default"); from this derives the obligation to compensate the loss itself by force of commutative justice. If either element is lacking there is no longer an obligation, unless the sentence of the judge intervenes, which, in conformity with the law, judges the opposite, in which case whoever has caused a loss even involuntarily is bound to compensate it.

In matters of contracts, the debtor is in culpable default: a) when he does something that by contract he ought not to do; b) when he does not do in useful time what he ought to do; c) when he does not do it within the time determined in the contract: that is, if he does it before the time fixed for the beginning, or after the time fixed for the term; d) when the law recognizes with full right that default is incurred; e) when the debtor has been juridically or legally interrogated. The amount of the compensation will be that agreed upon in the contract (except where the judge modifies it); if it has not been fixed it must be calculated according to a fair estimation, so that if there has been no fraud the foreseeable losses must be compensated, whereas if there has been fraud both the foreseeable losses and those arising immediately from the breach of contract must be compensated. In the case of money, however, the compensation generally cannot exceed the legal rate.

In matters of restitution of a thing not one's own: 1) whoever culpably delays it is bound to compensate the losses suffered by the owner and which could be foreseen, that is, those which commonly occur in such circumstances; not, however, the extraordinary ones, unless the defaulting debtor had been sufficiently warned of them, or had foreseen them; 2) if the restitution is delayed without fault, e.g., because the debtor has not the means to restore it, the losses arising in themselves are not to be repaid, unless the possession had its origin in a crime or in bad faith. The motives that legitimize the postponement of restitution or the non-fulfilment of the contract, in general, also excuse from compensation for the losses arising from the default; here too, however, it is better to distinguish between postponement attributable to the moral fault of the debtor and postponement not attributable, which bear upon the obligations of the subsequent m.

II. MOROSENESS FROM THE LEGAL ASPECT

The matter is regulated by arts. 1218-20 of the Civil Code and by art. 160 of the Transitional Provisions. The debtor who does not perform the obligation due is liable for the consequences of default, unless he proves that the non-performance resulted from a cause not imputable to him. However, in order for the debtor to be legally placed in default, a written demand or request is necessary, except when: 1) the debt arises from an unlawful act; 2) the debtor has not declared in writing that he does not wish to perform the obligation; 3) when, the performance having to be made at the creditor's domicile, the term has expired. If the debtor has promptly made an offer of his performance, he cannot be considered in default, except when the creditor has refused it for a legitimate reason. Default has the following effects on the debtor: compensation for the damages suffered by the creditor from the delay; the bearing of risks and perils, so that if the thing owed perishes by fortuitous event (but not if it is proved that it would equally have perished with the creditor) or the performance of the obligation becomes impossible, the debtor is liable for compensation. In particular, moreover, in the case of obligations having as their object a sum of money, legal interest is due from the day of default, even if the creditor does not prove that he has suffered damages; furthermore, if before the default interest higher than the legal rate was due, default interest is due at the same rate: if, moreover, the creditor proves that he has suffered greater damage, this must be compensated. There is purging of default when the creditor waives it (in which case, although the credit continues to exist, the obligations arising from the effects of default are extinguished), or by performance, or by any other means capable of extinguishing the obligation.

Elio Degano