Consequences of mora creditoris in Roman law

(a) Alleviation of liability

What were the consequences of mora creditoris? First of all, and most importantly, the debtor was not released from his obligation. But since he had done what he was expected to do and since the fact that he had not been able to discharge his obligation was attributable to the creditor, he no longer had to carry the risk of accidental destruction.

"Si cui homo Icgatus Russet ct per legatarium stetissct, quo minus Stichum, cum heres tradere volebat, acciperct, mortuo Sticho exceptio doli mali heredi proderit."²*'²

(b) Obsignatio and depositio

Moreover, a debtor who had unsuccessfully tendered a sum of money was able to seal and thus deposit it at a public place.²⁶³ The specific advantages of an offer followed by obsignatio and depositio were, firstly, that the accrual of interest was suspended ("ex eo die ratio non habebitur usurarum")²⁶⁴ and, secondly, that it relieved the debtor of the risk of not being able to prove—if the money disappeared—that these specific coins had in fact been earmarked to discharge his debt and that their disappearance was not due to his dolus malus.

(c) Recovery of expenses and damages

The alleviation of his liability with regard to the object owed and the possibility, as far as money was concerned, of depositing it in a public place: that did not always help the debtor. He could reasonably expect to be protected, too, where he had incurred—or was likely to ^{[4222] [4223] incur—expenses for looking after and maintaining the object that he had been unable to transfer. Occasionally, the debtor was allowed to abandon the object in order to avoid such expenses. Thus, particularly, a vendor of wine was entitled to pour away the merchandise if the purchaser had failed to take delivery in time (normally 1 October);[4224] after all, he needed the casks for his new harvest.}

"[S]i tamen, cum posset effundere, non effundit, laudandus est potius: eapropter mercedem quoque doliorum potest exigere, sed ita demum, si inrerfuit eius inania esse vasa in quibus vinum fuit... vel si necesse habuit alia conducere dolia."

In other words if he chose to keep the wine, the vendor was able to claim the damages he had suffered as a result either of not being able to let his dolia or of having to hire somebody else's dolia in order to accommodate his new wine. This claim for damages^[4226] was also available to him in all those cases where he did not have the option of abandoning the object sold. This was the case, for instance, where the object concerned was a slave:

"Si per emptorem steterit, quo minus ei mancipium traderetur, pro cibariis per arbitrium indemnitatem posse servari Sextus Aelius, Drusus dixemnt, quorum et mihi iustissima videtur esse sententia."^[4227]

The slave has to be fed during the time of the purchaser/creditor's mora and, according to Sextus Aelius, Livius Drusus and Celsus, the vendor could recover the respective expenses. This claim is based on the bona fides inherent in the contract of sale.^[4228] The purchaser's behaviour must thus have constituted a breach of good faith: it could not have been based on a good cause and must, at least typically, have constituted dolus. It appears to be likely, therefore, that the debtor's claim for damages on account of mora creditoris was based on fault and that, at least in this context, the "si per creditorem steterit" has to be interpreted in a narrower sense than for the other consequences of mora creditoris.^{[4229] [4230]}

(d) Purgatio morae

This way of looking at things would, incidentally, also bring the requirements for mora creditoris and mora debitoris into better harmony.

But whatever the exact delimitation between mora debitoris and mora creditoris, it is obvious that both could not exist at the same time with regard to one and the same performance. If A had promised to deliver a slave by 10 October, he fell in mora debitoris unless he had offered performance by the end of that day. If in fact he had made such an offer, it was the creditor who was in mora. What happened if the debtor attempted to perform on 20 October? Provided that his belated "oblatio" met all the other contractual requirements (i.e. proper manner, proper place), it had the effect of bringing the consequences of mora debitoris to an end; it resulted in what was called purgatio (or: emendatio) morae. This idea goes back to Celsus "adulescens", who is reported to have stated "eum, qui moram fecit in solvendo Sticho quern promiserat, posse emendare earn moram postea offerendo".^[4231] Such purgatio morae occurred even if the creditor did not accept perform­ance, because then, again, it was he who fell in mora (creditoris). Or, to put it the other way round: mora creditoris terminated mora debitoris. The reverse, incidentally, is also true: mora debitoris terminated mora creditoris. For the creditor, too, had the opportunity of "purging" his delay by subsequently being prepared to accept performance.^[4232] Any further delay was then attributable to the debtor and entailed the consequences of mora debitoris.

VI.