PURGAZIONE DELLA MORA
The culpable inducement to perform an obligation is commonly referred to as *mora* (default). This term is used only when the obligation is still capable of fulfillment; the institution thus differs from the other form of non-performance, where the missed performance is no longer possible—whether due to absolute impossibility (as when the thing has been destroyed) or relative impossibility (where late performance no longer benefits the creditor). The delay in performing the obligation may, as is obvious, arise either from the debtor (*mora solvendi*) or from the creditor (*mora credendi* or *accipienti*), though in common parlance the default is always imputed to the debtor.
### I. PURGATION OF DEFAULT IN ITALIAN CIVIL LAW
The Italian Civil Code does not define the institution, but this does not mean that the traditional correct understanding of it is automatically recalled. Thus, as Montel argues, it is necessary to reject «the common teaching that requires the liquidity of the debt for the constitution of default,» in accordance with the well-known Roman legal maxim *in illiquidis non fit mora*. A prerequisite of *mora solvendi* is fault, and as De Ruggiero defines it, «default is technically understood only as a form in which the fault of the obligor manifests itself at the moment when he is called upon to perform.» Default arising from causes beyond the debtor’s will—once the subject of examination and dispute in earlier times—is not, however, recognized in current Italian legislation.
The effects of default are extremely serious and may take the form of *perpetuatio obligationis* (whereby all risk and peril of the thing passes to the obligor, whereas before default it was borne by the creditor) and the obligation of the debtor to compensate for damages. These effects, however, cease when the default is, as it is technically said, purged. There are various ways in which purgation may occur: full performance of the obligation with restitution of any damages, extinction of the obligation by another cause, novation of the obligation, remission by the creditor, or the granting by the creditor of an extension of time for performance.
Just as a culpable default by the debtor is juridically recognized, so too is a default by the creditor, since the latter has «the general duty not to obstruct the debtor’s release from the obligation» (De Ruggiero). In such a case, the law ensures that any unjustified delay on the part of the creditor in receiving the performance does not place the debtor in a position to bear its consequences. It is evident, however, that to achieve this end—that is, for the creditor to suffer all the consequences of default—the debtor must prove that the entire performance was timely tendered, which for obligations to give is accomplished by real tender and the deposit of the sum owed. Such default is also subject to purgation, either through the occurrence of a cause for extinction of the obligation, the cessation by the creditor of refusal to cooperate in the performance, or the renunciation by the debtor of the consequences of default, including the withdrawal of the deposit. It should be noted that in the case of purgation of *mora credendi*, with the exception of extinction of the obligation, the original effects of the obligation revive, and thus the burden of unforeseen events returns to the debtor.
### II. PURGATION OF DEFAULT IN CANON LAW
The norms established in the Italian Civil Code apply equally in the Code of Canon Law, as is evident from the wording of canon 1529, which, for «contracts,» expressly refers in general to the civil law in force in the territory. As Del Giudice observes, this provision is not limited to contracts but serves as a general principle governing numerous institutions, including that of the purgation of *mora debendi* and *mora accipienti* in obligations.
### III. MORAL RESPONSIBILITY
Delay in payment or refusal to accept it may cause serious harm to the other party and thus becomes a source not only of legal but also of moral responsibility. Juridically, one is responsible only when there is legal fault; morally, only when there is theological fault. It is necessary here to recall the differences between these two concepts of fault in order to understand how the extinction of legal responsibility through purgation of default does not always entail the extinction of moral responsibility.