Mora creditoris in modern German law

The concept of mora creditoris underlying the provisions of the BGB is quite a different one. Unlike the creditor in a case of mora debitoris, the debtor in the event of mora creditoris does not have a right to sue for damages.

The reason is that mora creditoris under the BGB is not based on fault but merely on the fact that the creditor does not accept performance offered to him in the proper manner.^{[4206] [4207] [4208] [4209] [4210]} Fault as a requirement for mora creditoris, in turn, had lost its basis when it came to be recognized in the second half of the 19th century that the creditor is not obliged to receive performance but merely entitled to do so. The debtor, in other words, does not have a claim against the creditor to make him accept performance, even where it has been duly tendered. The institution of mora debitoris is merely designed to relieve in certain respects the position of a debtor who has done whatever one could reasonably expect him to do.^[4211] This doctrine, again, goes back to Friedrich Mommsen;^[4212]'¹ it was emphatically reasserted by Josef Kohler^[4213]" and impressed the fathers of the BGB.^[4214] Of course, both Mommsen and the (earlier) authors of the ius commune claimed that their views were derived from, or at least reconcilable with, the sources of Roman law. Contemporary Romanist doctrine tends to side with Mommsen and to attribute the modern, objective construction of mora creditoris to the Roman lawyers.²⁵² However, not all our sources do confirm such a general pattern; not even the solution adopted by the BGB, incidentally, is as straightforward as a reading of §§ 293 sqq. might suggest. With regard to one of the most important transactions, the contract of sale, the code deviates from the general principle: the purchaser is not bound only to pay the purchase price but also to take delivery of the object of the sale.^{2 3} Delay in accepting a res vendita is, therefore, first and foremost mora debitorisl

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