PURGATION OF DEFAULT. – The culpable delay in performing an obligation is commonly called default. It is therefore spoken of only when the obligation remains capable of being performed; this institution is thus distinguished from the other form of non-performance, in which the prestation that has not been rendered is no longer possible—whether in the case of absolute impossibility, as when the thing has been destroyed, or of relative impossibility, in which delayed performance is no longer of benefit to the creditor. Delay in performing the obligation may obviously arise either on the part of the debtor (mora solvendi) or through the creditor’s action (mora credendi or accipiendi), although in ordinary usage default is always attributed to the debtor.
I. P. DELLA M. IN ITALIAN CIVIL LAW. — The Italian Civil Code does not define the institution, but this does not mean that its traditional conception is automatically invoked. Thus, according to Montel, the common teaching that requires the debt to be liquid in order for default to be constituted must be rejected, in accordance with the well-known brocard of Roman law, illiquidis non fit mora. A precondition of mora solvendi is fault and, as De Ruggiero defines it, “default itself is not technically understood as anything other than a form in which the fault of the obligated party manifests itself at the moment when he is called upon to perform.” Mora inculpata, that is, default arising from causes extraneous to the debtor’s will, which in earlier times was the subject of examination and dispute, 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 danger relating to the thing passes to the obligated party, when before the default it had been borne by the creditor), as well as the debtor’s obligation to compensate the damage. These effects nevertheless cease when the default, as it is technically termed, is purged. The methods of purgation may vary: full performance of the obligation with reimbursement of any resulting damage, extinction of the obligation on another ground, novation of the obligation, remission by the creditor, or the granting by the creditor of an extension for performance.
Just as there may be culpable default on the part of the debtor, so the existence of default on the part of the creditor is recognized in law, since the latter has “the general obligation not to impede the debtor’s release from the bond” (De Ruggiero). In such a case, the law ensures that any unjustified delay by the creditor in accepting performance places the debtor in a position where he does not have to bear its consequences. It is evident, however, that in order to achieve this purpose—that is, for the creditor to bear all the consequences of default—the debtor must prove the actual timely performance of the entire obligation, which, in obligations to transfer, takes the form of a formal tender and deposit of the sum due. This default too is subject to purgation, whether through the supervening of a cause extinguishing the obligation, through the creditor’s ceasing to refuse the cooperation necessary for performance, or through the debtor’s waiver of the consequences of default, including by withdrawing the deposit. It should be observed that in the case of p. della m. credendi, except in the event of extinction of the obligation, the original effects of the obligation revive, and consequently the burden of the fortuitous event again falls upon the debtor.
II. P. DELLA M. IN CANON LAW. — The rules established in the Italian Civil Code find application in the same Code of Canon Law, since, as is clear from the wording of can. 1529, with regard to “contracts” the CIC has expressly declared that it refers, in general, to whatever ius civile in territorio statuit. As Del Giudice has observed, however, this provision does not concern contracts alone, but serves as a general principle with regard to numerous legal institutions, including, among others, that of p. della m. debendi and accipiendi in obligations.