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• Another optional right of the creditor is to claim compensation
for positive damages by waiving the right to claim specific per-
formance.
• Lastly, the creditor may claim compensation for negative dam-
ages by rescinding the contract.
Leaving aside the exceptions provided by Art. 124 TCO, in order
to exercise one of the other two optional rights, rather than claiming
the specific performance of the obligation together with compensation
for delay, a proper time period shall be granted by the creditor to the
obligor as a last chance to perform his obligation, or a request to that
effect shall be demanded from the judge. In addition to this, the oblig-
or’s fault is another required condition for obtaining compensation for
delay and compensation for positive or negative damages. In case the
creditor claims compensation for positive damages by waiving the spe-
cific performance or compensation for negative damages by rescinding
the contract, this fact shall be immediately notified to the obligor.
The consequences of the obligor’s default in long term synallag-
matic contracts are stipulated under Art.126 TCO. Therein, it is stipu-
lated that the creditor has the right to terminate the contract and claim
compensation for damages incurred due to rescission in addition to
their right to claim the specific performance and compensation for
delay.
Specific Performance and Compensation for Delay
As mentioned above, claiming the specific performance together
with compensation for delay is a general consequence of the obligor’s
default and is not intrinsic to synallagmatic agreements. Thus, the
creditor may request at any time from the obligor in default the specif-
ic performance of the obligation together with compensation for the
damage arising from the delay.
Compensation for delay is provided for in Art.118 TCO. In said
Article, it is stipulated that the obligor in default shall compensate,
unless he proves his non-negligence related to the delay, the damages
incurred by the creditor because of the delay in performance of the
obligation. It is a presumption that the obligor in default is at fault.
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NEWSLETTER 2014