Consequences ofmora debitoris (ius commune)
What were (and what are) the effects ofmora debitoris? The medieval lawyers were presented with a specific problem by the Roman rule that interest could be charged in bonae fidei contracts.
For how could this be reconciled with the canonical usura prohibition?[4116] [4117] Interest on account of mora, ran the argument usually presented to resolve the difficulty, was not to be regarded as genuine (illicit) usura, but as a (lawful) way of compensating the creditor for his damages: "hie usuras ut interesse peti" (Accursius) or.. pro interesse petatur" (Gofredus de Trano), and such a claim was not dishonest, "quia tale lucrum ex mutuo non speratur" (Cinus da Pistoia).[4118] Mora thus became one of the most important titles for awarding interest. The statutory or customary rates differed from town to town, from region to region. In the medieval upper Italian city states up to 20 % or even 30 % could be charged:[4119] in later centuries 5 % came to be widely accepted.[4120] "Moribus tamen hodiernis etiam in stricti juris judiciis ex mora usurae debentur quincunces", says Lauterbach,[4121] and he makes it clear that a distinction was no longer drawn between contracts bonae fidei and stricti juris. In modern German law every money debt bears interest during default at 4 %.[4122] Apart from that, as in the Roman law relating to incertum obligations, the creditor can claim compensation for damages122 and delivery of or restitution for emoluments.123 Furthermore, mora still has the effect of increasing the debtor's liability; he is responsible not only for negligence but also for impossibility of performance arising accidentally during the default.124For centuries it has been controversial whether the debtor is to be held liable even if the damage would also have arisen in the case of timeous performance.[4123] The BGB has settled this moot point in favour of the debtor.[4124] South African writers still refer to perpetuatio obligationis where they deal with the extension of the debtor's liability as a consequence of mora debitoris.[4125] So did many of the writers of the ius commune.[4126] Already by the time of Justinian, however, the debtor's obligation no longer had to be fictitiously perpetuated in order to preserve it as a basis of his liability. For even certum dare obligations were now adjudged according to the requirements of "aequitas", that is, as freely as the contracts bonae fidei under classical Roman law.[4127] In particular, liability was no longer strictly circumscribed by a procedural formula of the type: "Si paret...
dare oportere, quanti ea res est, tantam pecuniam..."—with the result that the obligation automatically fell away when the object of the performance was destroyed. As in the case of bonae fidei transactions, the debtor could be liable for id quod interest if he had not complied with his contractual duties. The same, of course, applies today.III.
More on the topic Consequences ofmora debitoris (ius commune):
- Requirements of mora debitoris (ius commune)
- Requirements ofmora debitoris in Roman law
- 1. Consequences of mora debitoris in Roman law
- 1. The older ius commune
- The regime of the ius commune: all or nothing
- Impossibilium nulla obligatio est under the (earlier) ius commune
- The compromissum of the ius commune
- III. FURTUM IN THE IUS COMMUNE
- Donation under the ius commune and in modern law
- THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE
- Conventio, pactum and contractus under the ius commune
- JUSTINIAN, IUS COMMUNE AND MODERN DEVEEOPMENTS
- 7.7.3 The Ius Commune in Italy, the Iberian Peninsula and the Netherlands
- Post-classical developments, Corpus Juris and ius commune
- Just like the Roman contractual system, the whole range of condictiones supplementing it was received into the ius commune;
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- Praetor’s Edict, Ius Honorarium, and Ius Novum
- V. IUS jNATURALE, IUS GENTIUM
- Consequences of mora creditoris in Roman law