Requirements of mora creditoris in Roman law

Mora creditoris in Roman law appears to have had two requirements. On the one hand, performance had to be offered to the creditor at the right time, in the right place and in the proper manner.

What that entailed depended on the circumstances of the individual case. As a general rule one can say that the debtor had to do whatever he was able to do without the co-operation of the creditor. Thus, where, according to the contract, performance had to be rendered at the creditor's premises, the debtor had to bring the goods, or the money, or whatever he owed, to that place and to offer it there. If, however, the creditor was required to collect the object of performance from the debtor's premises, a verbal offer was sufficient.²⁵⁴ Even that appears to have been dispensable, where a specific time had been fixed when the creditor was supposed to come around to collect whatever was due to him.^[4215] On the other hand, the failure of the debtor's attempt to render performance had to be attributable to the creditor. "Si per creditorem steterit quo minus accipiat" was the phrase used in this context by the Roman lawyers.^[4216] This, as we have seen repeatedly,^[4217] was a very broad and general expression, which did not in itself disclose under which circumstances a certain event was to be attributed to the creditor's sphere of risk. Marcellus^[4218] refers to a "iusta causa" which might entitle the creditor to refuse payment from his debtor. But only a hitch in the performance itself could constitute such a iusta causa: the fact that it was not tendered at the right time, at the right place or in the right manner. That he had fallen sick or was prevented from receiving performance by force or by bad weather was no excuse, as we know from Ulp. D. 13, 5, 18 pr.: "... proinde si valetudine impeditus aut vi aut tempestate petitor non venit, ipsi nocere Pomponius scribit." Thus it is widely accepted today that a creditor in Roman law—unlike a debtor—could be in mora, irrespective of whether he had been at fault or not.^[4219]

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