Short answer. Only from the moment the creditor demands performance, judicially or extrajudicially. A missed due date is not delay by itself. There are three exceptions where no demand is needed, and in reciprocal obligations neither party is in delay until the other is ready to perform his own side.

What the law says

Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation.

Civil Code, Article 1169 — Delay (Mora). Read the full provision →

What the law says

In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins.

Civil Code, Article 1169 — Delay (Mora). Read the full provision →

The due date does not start the clock — the demand does

This is the point most people get wrong. Article 1169 of the Civil Code says those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation. So a debtor who lets the agreed date pass is late in the ordinary sense but is not yet in legal delay, and the consequences that attach to delay — liability for damages, interest running, the risk of loss shifting — do not begin until a demand is made. A creditor who waits quietly for a year and then sues is usually reckoning his damages from the wrong date.

Extrajudicial demand counts, so make it and keep it

The demand does not have to be a lawsuit. It may be extrajudicial — a letter, a formal notice, any clear communication that the creditor now requires performance. What matters afterwards is proof, because the date of demand is the date from which money is usually counted. A phone call that the other side denies is worth very little a year later. Something written, dated and demonstrably sent to the debtor is worth a great deal, and costs almost nothing to produce at the time.

The three situations where no demand is needed

Article 1169 excuses demand in three cases. The first is where the obligation or the law expressly declares that demand is unnecessary — meaning a clause that actually says so, not merely a stated due date. The second is where the time of delivery or performance was a controlling motive for the contract, the classic case being goods or services that are useless after a fixed occasion. The third is where demand would be useless, as when the debtor has already put performance beyond his own power, for example by disposing of the very thing he promised to deliver. Outside these, assume you must demand.

In reciprocal contracts, delay is mutual until someone performs

Where each side owes the other, the article provides that neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him, and that delay by the other begins from the moment one of the parties fulfills his obligation. A buyer who has not tendered the price cannot put the seller in delay over the deed, and the seller who has not readied the property cannot complain of the unpaid balance. The practical question in nearly every reciprocal dispute is therefore who moved first, and what proof exists that they did.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

Related provisions

Note. Statute text quoted on this page is reproduced from the official enactment and is linked to the full provision. The explanation around it is general legal information from Vivas & Nobles Law Office, not legal advice. Whether it applies to your situation depends on facts only a lawyer reviewing them can assess.