La regulación del retraso en la modernización del derecho de obligacionessu incidencia en el derecho español

Abstract

Summary Delay in the performance of obligations is one of the key matters in the Law of obligations and contracts. Despite this, for the Spanish Civil Code, the moment of performance holds only a relative importance: even though the question is discussed by the authors, it has for a long time been understood that the delay in which the debtor incurs, when it doesn't come preceded by a communication issued by the creditor -that is, before the notice to perform usually known as constitución in mora-, is not relevant; at least, in regards to the compensation for damages arising from delay. However, this tendency seems to be changing due to a number of instruments that are getting published in the European context in the last few years; texts of different nature (some are law in force; some are not, which then get called soft law) that possess a remarkable influence in the scholar, judicial and legislative spheresand can be categorised in a movement that pursues the modernisation and unification of European Law of obligations and contracts. Among others, there's the Convention of Contracts for the International Sale of Goods, the Unidroit Principles, the Principles of European Contract Law, the Preliminary Draft of the European Contract Law issued by the Pavia Academy, the Draft Common Frame of Reference, the Common European Sales Law, the 2016 reform of the French Code Civil, or, in Spain, the Proposal of Modernisation of the Civil Code prepared by the Comisión General de Codificación, or the Proposal of Civil Code presented by the Association of Civil Law Professors. In these, a new conception of non-performance as a neutral, open and objective entity is commonly found, and with it, a new way of regulating delay in performance, where it appears as an autonomous form of non-performance that doesn't require the mora debitoris for the relevance of said delay; even if this particular configuration of delay, concretely, isn't to be found in every text. This said, the aim of the thesis is the correct delimitation, from a double point of view based on the analysis of both the Spanish law and in the new tendencies in the Law of obligations and contracts, of the state of the question and the possible solutions applicable in the Spanish system in the matter of delay in performance, examining whether, and to what extent, are the new tendencies likely to either displace or complement the traditional legal mechanisms of Spanish law. Following the methodology typical to Juridical Sciences (that is, the examination of legal texts, doctrinal research papers and jurisprudence in relation to the question in study -with a particular highlight on the different aforementioned texts, and recurring as well to Comparative law when necessary- in order to locate the principal issues, extract conclusions, and present concrete proposals), the aim of the thesis is fulfilled through an in-depth analysis of the delay regime contained in the different reference texts, paying clear attention to the mechanisms used to make delay relevant (such as the mora debitoris, the additional period to perform or nachfrist, the remedies for contract termination, or the penalty clause for delay) to examine, finally, the compatibility and coordination of these mechanisms in the context of Spanish private law of contracts; taking into account as well that some of them are already incorporated in said legal system, such as the additional period to perform, in the concrete example of consumer contracts. As part of the results and conclusions of the thesis, the concrete delay regimes of each text studied are individualised, identifying all the different mechanisms that are used to make delay legally relevant or to convey its effects; determining how, while practically all of the reference instruments adopt what are known as the remedies for non-performance, and together with these, the new model for the termination of the contract and the nachfrist mechanism, not all of them eliminate the mora debitoris. In fact, approximately the half of the studied texts and proposals do maintain such concept, even if its configuration isn't necessarily the same in each of them, thus existing different models of it. Furthermore, we conclude that the remedy of termination of the contract after the offering of a supplementary time for performance is of great influence among Spanish authors and even in some court rulings, beyond its legal consecration in consumer relations; in spite of which some unclear or less efficient aspects of it are emphasized. At the same time, it is explained how mora debitoris can still be useful in the frame of contractual relationships and the new concept for non-performance, particularly, for relationships between non-professional parties and consumer contracts, even if it needs to be held to some revision and actualisation; and a proposal for a mixed nachfrist-mora mechanism is presented. The impact of the new tendencies on penalty clauses, when they are relevant in cases of delay in performance of the obligation, is also exposed. And lastly, using the criterion of whether the party is acting or not as a professional in the contract, the different regimes of delay that are to be applied in the resulting sectors are exposed, referring to the current legal solutions, those that arise from the soft law texts examined, and those that are proposed in the thesis.