PURGATION OF MORA. - The culpable delay in performing an obligation is commonly called default. This is therefore spoken of only when the obligation is still capable of being performed; this institution is thus distinguished from the other form of non-performance, in which the performance missed is no longer possible, and this both in the case of absolute impossibility, as when the destruction of the thing has occurred, and in that of relative impossibility, in which the delayed performance no longer benefits the creditor. The delay in performing the obligation may arise, as is obvious, either on the part of the debtor (mora solvendi), or through the act of the creditor (mora credendi or accipiendi), although in common language 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 concept of it is automatically invoked. Thus, again according to Montel, "the common teaching that requires the liquidity of the debt for the constitution in default" is to be rejected, in accordance with the well-known brocard of Roman law in illiquidis non fit mora. A prejudicial element of mora solvendi is fault and, as defined by De Ruggiero, "default itself is not technically understood as anything other than a form by which the fault of the obligor is manifested at the moment when he is called upon to perform." Default inculpata, that is, default arising from causes beyond the debtor's will, which in more remote times was the object of examination and dispute, is not, however, considered in current Italian legislation.
The effects of default are very serious and may take concrete form in the Perpetuatio obligationis (by which there follows the transfer of every risk and peril of the thing to the charge of the obligor, when before the default it was to the charge of the creditor), and the debtor's obligation to compensate for the damage. These effects, however, cease when the default, as is technically said, is purged. The manners of purgation may be various: full performance of the prestation with reimbursement of any damages, extinction of the obligation for another cause, novation of the obligation, remission on the part of the creditor, or the granting by the latter of an extension for performance.
Just as there exists a culpable default in the debtor, so too the existence of a default in the creditor is juridically configured, since the latter has "the general obligation not to interpose obstacles to the debtor's liberation from the bond" (De Ruggiero). In such a case the law takes care that every unjustified delay on the part of the creditor in receiving the prestation must place the debtor in a position not to bear its consequences. It is evident, however, that in order to achieve this purpose, that is, in order that the creditor suffer all the consequences of the default, the debtor must furnish proof of the actual timely performance of the entire prestation which, for obligations to give, takes concrete form in the real offer and the deposit of the sum owed. This default too is subject to purgation, whether through the supervening of a cause of extinction of the obligation, or through the creditor's ceasing to refuse the cooperation necessary for the prestation, or through the debtor's renunciation of the consequences of the default, also providing for the withdrawal of the deposit. It is to be observed that in the case of p. of the m. credendi, with the exception of the extinction of the obligation, the original effects of the obligation come back to life, and therefore the burden of the fortuitous event returns to the charge of the debtor.
II. THE PURGATION OF THE MOOR IN CANON LAW
The rules established in the Italian Civil Code find their application in the Code of Canon Law itself, since, as appears from the wording of can. 1529, for "contracts" the CIC declared that it expressly refers, in general, to what ius civile in territorio statuit. Such a provision, as Del Giudice has observed, does not however reflect only contracts, but holds as a general principle with regard to many institutions, such as, among others, that of the p. of the m. debendi and accipiendi in obligations.
III. MORAL RESPONSIBILITY
Delay in payment or refusal to accept it can cause serious harm to the other party and therefore becomes a source not only of legal responsibilities, but also of moral ones. Legally, however, one is responsible when there is legal fault; morally, only when there is theological fault. It is necessary here to recall the differences between the two concepts of fault, in order to understand how the extinction of legal responsibility through the p. of the m. is not always also the extinction of moral responsibility.
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Giuseppe Spinelli