1. Consequences of mora debitoris in Roman law

All in all it has become apparent that the way in which the Roman lawyers dealt with breach of contract depended on the type of procedural remedy applicable in the individual case.

There was only one form of breach of contract on the part of the debtor that received special attention and became institutionalized across the board, and that was mora debitoris. We have already seen that failure by the debtor to discharge a "certam rem dare" obligation within the time allotted to him had the effect of increasing his liability: he became responsible for any incident that made performance impossible, no matter whether it was due to his fault or whether it had occurred accidentally.^[4056] But this rule was not confined to certam rem dare obligations. Whatever the debtor owed, mora (debitoris) placed the risk of any accidental destruction of the object of performance on his shoulders. This appears to have been the case even if the loss was not in any way causally related to the delay of performance. Thus, for instance, a debtor in mora was liable if the piece of property that he had promised was destroyed by virtue of a landslide.^[4057] The fact that the landslide would have hit the estate, even if it had been transferred in time, does not seem to have mattered.^{[4058] [4059]} With regard to claims for an incertum, particularly the iudicia bonae fidei, mora debitoris had further consequences: the creditor could claim the fruits which the object of performance yielded during the delay.⁴⁹ Where money was owed, the debtor became liable for interest.^[4060] Apart from that, he had to compensate the creditor for any damage arising from the default.^[4061]

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