Late payment does not justify breaking a health plan contract.

Delay in payment of monthly health plan fees, including outstanding fees, does not justify a unilateral breach of contract by the provider, given the substantial fulfillment of the obligation.

The health plan claimed that the client was repeatedly late in paying monthly fees.

With this understanding, Judge Fabiana Andrea de Almeida Olivera Pellegrino, of the Second Court of the Special Consumer Court System of El Salvador (BA), decided to reestablish the health plan contract.

The service provider unilaterally breached the agreement by claiming that the customer paid the monthly fees late and that the January bill was not paid until March 22 of this year.

Stagnation in the collection

However, the judge notes in the decision that the reporting of the default on the January bill did not occur until March 26. Moreover, she finds that the service provider had, prior to that, remained inactive in the face of the delay.

“Accordingly, I understand that the Defendant failed to fulfil its duties of care, loyalty and fidelity, allowing the delinquency to continue without alerting the consumer in advance to the risks of its conduct.”

High compliance

The judge also writes, referring to the report of Minister Luis Felipe Salomao, of the Supreme Court of Justice, in Special Appeal No. 1,051,270, that there is a need to verify the client's compliance in substance, which “aims to prevent the unbalanced use of the creditor's right to terminate.”

In other words, the judge wrote, “to make the award legitimate, it is necessary that the default be so great as to substantially deprive the creditor of the benefit to which he is entitled,” which is not the case at hand.

“Despite the identification of late payments, the fact is that the plaintiff has not failed to pay them, including the fees due, as can be seen from the documents collected in the file, indicating substantial compliance with the obligation, which could exclude the possibility of a contractual decision,” the judge decides.

The judge also ordered the health plan provider to issue the client with invoices for February and March, as payment was not recorded in the records. It also rejected the client’s claim for moral damages, as it did not specify a crime against her personal rights.

The lawyer's action in the case Iran Del Reyfrom the office of D'el Rey Advocacia.

Click here to read the decision.
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