Requirements of mora debitoris (ius commune)

(a) The rote of culpa

Throughout the various periods of the ius commune, mora debitoris was usually allotted a dogmatic compartment of its own. "Mora est solutionis faciendae...

^flft Cf. e.g. Pomp. D. 12, 1, 3: "[S]cd cum quaeratur, an per te factum sit, animadverti debebit... si aliqua iusta causa sit. propter quam intellegere deberes te dare oportere." The term "iusta causa" must be taken to refer to an interpellatio; cf.. particularly, Kaser, (1980) 46 SDHI106 sqq.

"⁷ Marci. II. 22, 1, 32 pr. in fine.

^fls Ulp. D. 13, 1. 8, 1; cf. further Pap. I). 13, 1, 17; Tryph. D. 13, 1, 20; Kaser, (1980) 46 SDHI 115 sq. The rule of "fur semper in mora" became part of the ius commune; cf. e.g. Voet, Commentarius ad Pandectas. Lib. XXII. Tit. I, XXVII; Windscheid/Kipp, § 278, 2. The BGB did not specifically adopt the rule (cf. "Motive", in Miigdan. vol. II, p. 33), without, however, wanting to reject it. § 848 BGB does not deal with the question of whether an interpellatio is dispensable or not, but merely states that a person who is bound to return a thing of which he has deprived another by delict, is responsible for accidental impossibility of returning it. On the background and significance of this rule in modem law, cf. Jens Peter Meincke, "Kann § 848 BGB gestrichen werden?", 1980 Juristenzeitung 677 sq.; Wacke, Festschrift Hiibner. pp. 683 sqq.

Voet, Comamentarius ad Pandectas.

⁷⁽¹ Syntagma. Exerc. XXVII, Lib. XXII, Tit. I, LXV.

Doctrina Pmidectamm, % 355.

culpable delay of performance.^[4075] However, such culpa usually appears to have been presumed to exist if all the other requirements of mora were met; for most writers were not so much concerned with the details of fault as such and with its (positive) establishment as with the enumeration and discussion of (exceptional) circumstances, which excluded fault: "Evenit tamen aliquando, ut mora excusationem mereatur; in quantum non omne, quod differendi causa fit, morae adnumerandum est."^[4076] Thus there was no mora if the debtor did not know about his obligation (which he might, for instance, have inherited), if he could not ascertain the amount he had to pay, or if he was prevented from performing timeously due to his absence "rei publicae causa", due to the fact that the creditor was a minor for whom no tutor had been appointed, or because it was difficult to find out who the creditor was.^[4077]

(b) Impossibility and difficultas praestationis

Impossibilitas superveniens was sometimes regarded as a specific causa excusandi,^[4078] but only if it was owing to a casus fortuitus. Under these circumstances, it tied in with the general maxim of "casus a nullo praestantur".^[4079] Since impossibility on account of casus, however, had the effect of releasing the debtor from his obligation,^[4080] it did not have to be specifically stressed that the debtor was excused from not rendering performance. Much more interesting was the question whether a mere difficultas praestationis could be equated to impossi­bility. The answer given by the civilians, by and large, was in the negative: even where performance had become difficult, it still had to be rendered; in other words: the debtor's obligation was not terminated.^[4081] A concession was, however, made in that difficultas came to be accepted as a valid excusatio morae.

(c) Interpellate and mora ex persona

The general principle that delay leads to the inference of fault has, however, survived. Thus, even according to the BGB, it is not the creditor who has to prove the debtor's fault but the debtor on whom it is incumbent to show that he was not to blame for the delay.^[4087] Such inference of fault is, however justifiable only on account of the fact that the law, as a rule, still requires a special warning before a debtor can be seen to be in mora.^[4088] This, obviously, is the Roman interpellatio. Since the days of the glossators,^[4089] it was one of the standard prerequisites for what was first termed "mora regularis" and later, with reference to Marci. D. 22, 1, 32, "mora in persona". "Mora ex persona fit", defines, for instance, Johannes Voet, "si interpellates opportuno loco et tempore non solvent".^[4090] One informal, extrajudicial interpellatio appears to have been very widely regarded as sufficient,^[4091] although Wissenbach clearly goes too far when he refers to a "communis Doctorum opinio".^[4092] According to Perezius,^{[4093] [4094] the question was}

controversial and, in fact, there were authors who required more than one warning.⁴¹ But, as Perezius put it:.

unicam legitime factam sufficere arbitrantur, cum qui certior factus est, non debet amplius certiorari.^1,92 Others were not so much concerned with the number of interpellationes, and (implicitly) with the consistency of the creditor's behaviour,^{[4095] [4096] but with the form and manner in which the demand was made. Thus, in France the debtor was traditionally ("suivant nos usages")[4097] seen to be in mora only if he had received "tine interpellation judiciaire". Even under the code civil, "mise en demeuere" still requires "une sommation", a formal notice demanding performance and served through a huissier.[4098] [4099] Some writers, though, saw the requirement of a summons as limited to contracts stricti iuris:}

"Quod autem dicunt interpellationem extrajudicialcm sufficere, id referendum est ad eum, qui debitor est ex contractu bonae fidei, non ad eum, qui ex stricti Juris contractu tenetur, nam ut hie periculum morae sustineat, necesse est ut iudicialiter interpellatus sit."^9fl

The reason was essentially a procedural one: in bonae fidei iudicia the judge had a very wide discretion and could thus condemn the defendant to pay damages or interest where this seemed reasonable (that is, even after the latter had merely received an informal demand). Iudicia stricti iuris did not give the judge that much leeway; he could only condemn in what was "nominatim... petitfum]".^[4100] Hence, if "interesse, usurae et similia"^[4101] were to be claimed on account of mora debitoris, they had to be included in the "petitio iudicialis".

id) Interpellate and lids contestatio

This difference in the requirements for mora debitoris was, of course, bound to fall away once the distinction between iudicia bonae fidei and stricti iuris had become obsolete and all contracts were seen to be governed by the precepts of bona fides.^[4102] Nevertheless, in a strange and rather confusing way the older view lingered on, at least amongst the Roman-Dutch authors.

"Nostris vero moribus... regulariter ex sola mora extrajudidali usurae nee in bonae fidci nee in scricti iuris negotiis adjudicandae sunt; post litem vero contestatam utrobique omnino...."¹⁰"

Thus, for mora interest to be awarded, an interpellatio extrajudicialis was not sufficient, and in that respect the regime originally applicable only to contracts stricti iuris appears to have gained the upper hand. Proceeding, inter alia, from Voet XXII, I, XI, South African courts have come to the (erroneous) conclusion that according to (classical) Roman-Dutch law "litis contestatio constituted that due demand from the date of which mora existed".^[4103] It was only in the 1926 case of West Rand Estates Ltd. v. New Zealand Insurance Co. Ltd. that Solomon JA clearly stated that neither a demand in the form of a summons nor litis contestatio was required for either mora as such or any of its consequences. "[MJora begins from the date of receipt of the letter of demand",^[4104] he pronounced, thereby in turn implying incorrectly that the interpellatio had to be in writing. Today, however, it is recognized that no specific form has to be observed/⁰³ Even an oral warning is sufficient. The position is thus the same as in modern German law.

(e) Mora ex re

Where we have mora regularis, there must be mora irregularis; and if mora ex persona was equated to the former, its obvious "irregular" counterpart was the mora ex re of Marci. D. 22, 1, 32 pr:

"Mora ex re est, quae fit sine interpellatione, adcoque lege introducitur sine facto hominis, sen quando res ipsam moram in se continet, unde a Paulo mora in re appellatur":¹"⁴

mora arises from or is inherent in the circumstances of the case and thus the law does not insist on a specific intervention on the part of the creditor in the form of a demand or warning. Mora ex persona was seen to be based on an interpellatio, mora ex re covered a number of situations where one could do without it. By far the most important of them concerned the debtor who had to render performance certo tempore. Where the contract specifically determined a date for performance, the debtor did not need to be reminded; any delay was attributable to his fault in the same way as if he had received a warning:

.. ea quae promisit ipse in memoria suo servare, non ab aliis sibi manifestari poscerc [debet]."¹"⁵ Essentially it was the "certus dies" as expressed in the contract which was seen to make its own demand; hence "dies interpellat pro homine".¹"⁶ This maxim was based on a constitution of Justinian that had declared a special warning (the interpellatio of classical law, now termed "admonitio") to be dispensable "si quis certo tempore facturum se aliquid vel daturum se stipuletur".^{[4105] [4106] [4107] [4108] The glossators generalized the idea inherent in this piece of legislation,[4109] and thus "dies interpellat pro homine" emerged as a widely recognized principle of the ius commune.[4110] Over the centuries, it became so firmly engrained in the practice of (particularly) the Dutch and German courts that not even the controversies among 19th-century pandectist writers[4111] about the true position in Roman law were able to endanger its continued application.[4112] Dies interpellat pro homine has become part and parcel of South African law[4113] and § 284 II BGB presents its modern codified version. Only French jurisprudence has remained unsympathetic to the glossatorial emphasis on the lex "Magnam" and has rather taken its inspiration from texts such as D. 50, 17, 88. "Nulla intellegitur mora fieri, ubi nulla petitio est" said Scaevola, and he intended this to mean that a debtor could be guilty of mora only with regard to an actionable claim. He was, however, understood to consider a summons (petitio judicialis) as a prerequisite for mora; hence the emphasis on a "sommation (on autre acte equivalent)” which we still find in the code civil.[4114] It is essential for the mise en derneure even where the contract has specified a time for performance.[4115] Only where the nature of the obligation is such that it can only be performed within a certain time may damages be claimed without formally putting the debtor in delay.lk}

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