There is a misconception among quite a few lawyers that a prior demand upon the obligor is necessary to confer a cause of action in a suit for specific performance. Even legal authorities sometimes fall prey to this oversight. See, for example, the following excerpt from a book on civil procedure:
“For instance, if in an action for a sum of money arising from loan, the complaint fails to allege that the debt is due and demandable, there is a failure to state a cause of action. Even if it is so alleged, but if the complaint contains no allegation that there was a prior demand upon the debtor to pay and such demand went unheeded, there is also a failure to state a cause of action.” (Italics supplied).
That there was a failure to state a cause of action in the second sentence of the above example is a misapprehension. It commonly arises from the failure to spot the nuanced distinction between cause of action under Section 2, Rule 2 of the Rules of Court and legal delay or default under Article 1169 of the Civil Code.
Cause of action, as defined in Section 2 of Rule 2, is simply the act or omission by which a party violates the right of another. On the other hand, delay or more properly legal delay or default is defined in Article 1169 of the Civil Code: “Those obliged to deliver or to do something incur in [legal] delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of the obligation.” (Italics supplied). Cause of action and default are two distinct concepts which should not be conflated.
It is evident that the debtor’s failure to pay a debt which is due and demandable gives rise to a cause of action in favor of the creditor. The debtor’s omission to pay the loan when due violates the right of the creditor. The debtor here is in ordinary delay.
Nonetheless, the debtor is not yet in legal delay or default (also known as mora solvendi) until the creditor judicially or extrajudicially demands from the debtor the payment of the loan. This does not mean that there was no cause of action before the judicial or extrajudicial demand; it only means that the debtor will become liable for damages, including punitive interest under Article 2209, only from the moment that demand was made upon him.
This is clear from a reading of Article 1169: the demand that will put the obligor in default may either be extrajudicial or judicial. In other words, Article 1169 is clear that there is no need for the obligee to precede his judicial demand with an extrajudicial demand; he can immediately resort to a judicial demand to put the obligor in default.
The misconception also arises from the failure to distinguish between ordinary delay and legal delay or default as used in Article 1169. At first blush, the text of Article 1169 would lead us to conclude that there is no cause of action prior to the demand because the obligor is not yet in delay. However, as previously mentioned, Article 1169 when it uses the word delay refers not to ordinary delay but to legal delay or default. A debtor who fails to pay a loan when due is already in ordinary delay and there is from that moment a cause of action in favor of the creditor even though the consequences of mora solvendi will set in only from the time demand is made upon the debtor.
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Last January 26, 2023, I bought your Primer-Reviewer on Remedial Law, volumes 1 and 2, from Central Book Supply (Invoice No. 35410) here in Cebu City, the place of my residence.
At P2,180.00 each and marooned in a sea of “other” remedial law books at much lower prices, I was hostile and averse to having my paltry patrimony reduced by steep P4,360.
But…the invoice says it all. Affiant sayeth naught.
Two of my friends to whom I strongly recommended your books were each set back by like amount as I was. But I heard them say: Quality comes with a price. We submit. Nothing further, your honor.
Thank you for buying and recommending my book. My royalties are modest but satisfactory. My real recompense is knowing that I’m able to help law studes and graduates in my own small way.