The creditor delay: consequences and cessation

Abstract

As general rule, the Spanish Law provides for the legal institution of the creditor's delay. In spite of the absence of a clear legal definition in the Spanish Civil Code, several dispositions are referring to it both the Civil Code and the Commercial Code & special laws. Doctrine and jurisprudence have set in place its legal regime, definition and the legal requirements, the consequences and cessation. The delay of the creditor can be defined as the delay in fulfilling the obligation of accepting the pay-out due to the rejection by the creditor, without legal justification, of the payment made by the debtor, when the creditor's cooperation is necessary for the fulfilment of the obligation irrespective of being negligent conduct or not of the creditor.             The consequences of the creditor's delay are: the maintenance of the obligation, impede or exclude the delay of the debtor, release the debtor from the consequences of non-compliance, shift the risk to the creditor for the loss of the thing not attributable to the debtor, pay the creditor to debtor the expenses for the conservation and custody of the thing, deliver the debtor to the creditor the fruits and interests, and release the debtor from the obligation by consigning the thing owed. The causes for which the creditor's delay ceases are: due to the loss of the thing due to fraud or fault of the creditor or fortuitous event, by prescription, by compensation, by confusion, by consignment, when the creditor accepts the benefit, when the creditor and debtor agree on a later time for compliance, or through a new offer from the debtor followed by the creditor's acceptance.