MOROSITÀ. – From the Latin mora, delay, it is the unjustified deferment or delay in the fulfillment of an obligation. This unjustified delay may have implications in the ethical and juridical spheres. Moralists distinguish morosità arising from the failure to return something unjustly possessed from morosità resulting from the non-fulfillment of an obligation undertaken by contract; civil lawyers, on the other hand, speak more generally of failure to perform an obligation owed. The law, moreover, considers only juridical culpability, in itself disregarding voluntariness, whereas in moral matters theological culpability prevails.
I. DELAY FROM THE ETHICAL POINT OF VIEW
There is a case of delay: 1) when, as a result of the culpable failure to perform, within the stipulated time, an obligation undertaken by bilateral contract, harm is caused to the other party; 2) when failure to return an object held in bad faith causes harm to its true owner. In both cases theological culpability and harm that has actually occurred are presupposed (it is then said that the debtor has been «placed in default»); from this arises the obligation to compensate for the harm itself by virtue of commutative justice. If either element is lacking, there is no longer any obligation, unless a judge’s sentence intervenes which, in conformity with the law, rules otherwise; in that case, anyone who has caused harm, even involuntarily, is bound to compensate for II.In matters of contract, the debtor is culpably in default: a) when he does something which under the contract he ought not to do; b) when he fails to do within the proper time what he ought to do; c) when he fails to do it within the time specified in the contract—that is, if he acts before the time fixed for commencement, or after the time fixed for completion; d) when the law recognizes as a matter of full right that default has occurred; e) when the debtor has been legally or judicially summoned. The amount of compensation shall be that agreed upon in the contract (unless the judge modifies it); if it has not been fixed, it must be calculated according to an equitable assessment, so that, where there has been no fraud, the foreseeable damages are to be compensated, whereas, where fraud has occurred, both the foreseeable damages and those resulting immediately from the breach of contract are to be compensated. When, however, the matter concerns money, the compensation generally may not exceed the legal rate.
In matters concerning the return of something not belonging to oneself: 1) anyone who culpably delays its return is bound to compensate the owner for the harm suffered and foreseeable—that is, the harm that ordinarily occurs in such circumstances—but not for extraordinary harm, unless the defaulting debtor had been sufficiently warned of it or had foreseen it; 2) if the return is delayed without fault, e.g., because the debtor has nothing with which to make restitution, the resulting harm in itself is not to be compensated, unless possession originated in a delict or in bad faith. The reasons that legitimize delaying restitution or failing to perform a contract generally also excuse one from compensating for the harm arising from default; here too, however, it is better to distinguish between delay attributable to the debtor’s moral fault and delay not attributable to him, since these have consequences for the obligations arising from the subsequent delay.
II. M. FROM THE LEGAL ASPECT. — The matter is regulated by Articles 1218–20 of the Civil Code and by Article 160 of the Transitional Provisions. A 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 attributable to him. However, in order for the debtor to be legally placed in default, a formal demand or request made in writing is necessary, except when: 1) the debt arises from an unlawful act; 2) the debtor has declared in writing that he does not intend to perform the obligation; 3) where the performance is to be made at the creditor’s domicile, the deadline has expired. If the debtor has made a timely tender of his performance, he cannot be considered in default, unless the creditor rejected it for a legitimate reason. Default has the following effects upon the debtor: compensation for the damage caused to the creditor by the delay; and bearing the risks and hazards, so that if the thing owed perishes by chance (though not if it is proved that it would likewise have perished in the creditor’s possession), or performance becomes impossible, the debtor is liable to pay compensation. In particular, where the obligations concern a sum of money, statutory interest is due from the day of default, even if the creditor does not prove that he has suffered damage; moreover, if interest exceeding the statutory rate was due before the default, default interest is due at the same rate: if the creditor then proves that he has suffered greater damage, this must be compensated. Default is purged when the creditor waives it (in which case, while the claim continues to exist, the obligations arising from the effects of default are extinguished), or through performance, or by any other means capable of extinguishing the obligation.