Partial default

"Partial default" refers to a situation where the obligor, having partially performed the obligation, falls into default with regard to the remaining, unfulfilled part. For partial default to arise, two cumulative conditions must be met: pursuant to Art. 84 CO, the obligation must have been partially performed; and under Art. 117 CO, the general requirements for the debtor's default must be satisfied. Under this regime, the contract is analytically divided into two parts: the first is the portion that has been performed -at least partially- in accordance with the contractual terms; the second is the remaining part, in relation to which the obligor is in default and the creditor may exercise default-related rights. Regarding the unperformed portion, the obligor is liable for accidental loss pursuant to Art. 119 CO. In accordance with Art. 118 CO, the creditor may demand specific performance of the outstanding obligation and claim damages for delay. In bilateral contracts, and by analogy with Art. 125 CO, the creditor may renounce performance of the delayed part and claim damages for positive interest, or partially withdraw from the contract and claim compensation for negative interest. However, in exceptional cases, where limiting the legal consequences of default to the unfulfilled part would be inequitable or impracticable, the creditor may assert the debtor's default in respect of the entire obligation. Such exceptions include, inter alia, the indivisibility of the creditor's counter-performance, the complete lack of utility of the part already performed, or the fact that the contract would not have been concluded without the unperformed portion.