1. Mora creditoris, mora debitoris and breach of contract

When we were discussing mora, reference was made to the definition contained in Voet's Commentarius ad Pandectas: "Mora est solutionis faciendae... frustratoria dilatio."²⁴⁰ It provided a convenient starting point for our examination of mora debitoris.

We must now turn our attention to what, at that stage, we left out and merely represented by three dots: the words "vel accipiendae". If the debtor can upset the smooth exchange of performances, so can the creditor: the one by delaying his performance, the other by delaying acceptance of the performance offered by his debtor. Again, Voet's statement is typical of the view taken by the authors of the ius commune: they saw mora

⁷⁴ N. 660: "L'extinction de la chose due iteint la dette."

³⁵ Freeman v. Taylor (1831) 8 Bing 124; Jackson v. Union Marine Insurance Co. lad. ("Spirit of Dawn") (1874) LR 10 CP 125.

²⁶ Cf. e.g. Zweigert/Kotz, pp. 252 sqq.; Simpson, (1975) 91 LQR Tit sqq.

³⁷Cf. supra, pp. 579 sqq.

³⁸(1975) 91 LQR 273.

³⁹ Cf. e.g. Kreil v. Henry [1903] 2 KB 740 (CA), dealing with the situation that the owner of a house en route of the coronation procession had let it to the defendant for the day. The procession was cancelled. It was held that the defendant was entitled to refuse to pay the rent under these circumstances. For a discussion of the coronation cases, see e.g. R.G. McElroy, Glanville Williams, "The Coronation Cases", (1940-41) 4 Modem LR 241 sqq.; (1941-42) 5 Modem LR 1 sqq.

³⁰ Cf. supra, p. 793 (note 69).

creditoris as a counterpart, or twin image, of mora debitoris.^[4200] Obviously, mora creditoris is practically much less important ("[mo- ram] frequentius quidem debitor committit, rarius creditor"), but it does not, in essence, differ from mora debitoris. Both are, after all, two different types of mora and both are therefore based on fault (culpa).

But where there is fault, there must also be the breach of a duty, for fault can be attributable only to someone who has done what he should not have done or who has failed to do what he should have done; hence the general assumption that the creditor is obliged to receive performance and that mora on his part constitutes a culpable breach of this obligation. "Mora est delictum culpabile in debito solvendo, vel credito recipiendo commissum"; or "Mora est culpa praetermittendi officii in solvendo, recipiendove debito, quae alteri damnosa est".^[4201] As a result of this construction, the debtor had a claim for damages against the defaulting creditor.^[4202]

In a way, therefore, the position under the ius commune did not differ much from that under the English common law, where mora creditoris is unknown as a specific legal institution.^[4203] The creditor is liable, in the same way as the debtor, for breach of contract; the debtor's remedies depend (as do those of the creditor) on whether the breach of contract is "substantial", "goes to the root of the contract" or is "material".^[4204] It is interesting (but no longer surprising) to see that the creditor's liability is based, dogmatically, on the (judicial) implication of an appropriate term into the contract. According to Anson/Guest,^[4205] the courts "are most ready to imply a condition that each party undertakes to do all that is necessary to secure performance of the contract"; and it is the infringement of this duty to co-operate that constitutes the creditor's breach of contract.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Mora creditoris, mora debitoris and breach of contract

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