Requirements ofmora debitoris in Roman law

(a) In general

What, then, were the requirements for mora debitoris? First of all, of course, there had to be a debt which was both actionable^[4062] and due.^[4063] Secondly, the debtor had to have failed to make performance at the proper time.

But whether (thirdly) such failure to perform had to have been due to his fault and whether (fourthly) the debtor had to receive a special warning (interpellatio) from the creditor before he could be considered in mora, is much more doubtful. For both of these additional requirements there appears to be some textual support, and thus, for instance, we find them entrenched in the German Civil Code, albeit in a somewhat attenuated form: it is the debtor who has to jjrove that he was not at fault in failing to render performance, ^[4064] an interpellatio, on the other hand, is dispensable if a specific time on the calendar had been fixed for performance.^[4065] Modern Romanistic doctrine has come up with different suggestions. Thus, it has been held that mora debitoris in classical Roman law required fault but not a special warning.^[4066] Others have come to exactly the opposite conclusion: mora debitoris was not based on fault but, as a rule, on an interpellation issued by the creditor.^[4067] Those who require fault are again not ad idem as to whether culpa at large was sufficient or whether the debtor, in failing to perform, had to have acted dolo malo.^[4068] ^{^[4069] ^[4070] (b) Mora ex persona
The truth appears to lie somewhere in the middle; for neither did the Roman lawyers think in terms of the clear-cut modern concepts of dolus and culpa, nor were they interested in isolating and delimitating subjective (culpa) and objective (interpellatio) elements of liability. The best starling point to understanding their way of thinking appears to be the constitutio veterum: "[Qjuotiens culpa intervenit debitoris, perpetuari obligationem."^5y Culpa (in the sense described above) was thus essential for perpetuatio obligationis in both cases covered by the fiction.
In other words: the debtor's "fault" either had to relate to the supervening impossibility itself or to the delay of performance in the course of which such impossibility occurred (albeit accidentally). Essentially, therefore, mora debitoris depended on culpa. Marcianus expresses the same idea only slightly differently when he says: "Mora fieri intellegitur non ex re, sed ex persona, id est, si interpellate oportuno loco non solvent.'⁴¹⁰ The question of mora debitoris was not determined merely by the external criterion ("ex re") of whether performance had in fact been made or not. The judge's enquiry had to focus on the person of the debtor ("ex persona"), i.e. on whether or not he knew that the due date had arrived.^{6 r} If, indeed, he knew and still did not perform (without good reason},^[4071] the term "dolus malus" could be appropriately used to label his behaviour.^[4072] (c) The role of interpellatio
But how could one ensure that the debtor knew about the proper time for performance? The most expedient way to do so was to give a special warning. Such an interpellatio was designed to let the debtor know that he was about to do what the jurists normally referred to as "moram facere".^[4073] It was such a convenient device for making the debtor incur the consequences of mora debitoris that the terms "interpellatum" and "in mora" were repeatedly used as synonyms. Thus, we read in Pomp. D. 45, 1, 23 that the promisor of a certain slave was liable only, after the death of that slave, "si per [promissorem] steterit, quo minus... eum mihi dares: quod ita fit, si aut interpellatus non dedisti aut occidisti eum". In D. 22, 1, 32 pr., too, the concept of mora "in persona" is described without further ado as a situation where the debtor does not perform at the proper place, even though he has been warned ("interpellatus").
Indeed, mora and interpellatio were seen to be so intimately linked with each other that a special reference to the requirement of culpa was often regarded as dispensable;^[4074] for if the debtor had received a warning, non-performance could be attributed, as a rule, to his "fault".⁶⁶ On the other hand, however, interpellate was not a strict requirement for mora; it was an important indication, but not an essential prerequisite for establishing the debtor's "fault". What was required was a careful investigation into all the facets of each individual case:.. an mora facta intellegatur, neque constitutione ulla neque iuris auctorum quaestione decidi posse, cum sit magis facti quam iuris."⁶⁷ Objective and subjective criteria were inextricably interwoven, and the Roman lawyers were not inclined to work out fixed and rigid rules. In particular, it was left to the judge's discretion to decide whether in an individual case an interpellatio was (or would have been) necessary in order to make the debtor aware of the fact that he was about to default. No interpellatio was required where one person had deprived another of an object by a delictual act. If A had stolen something from B, he knew (or was supposed to know) that he was bound to restore it to the latter; in fact, he should not even have created a situation in which such a duty of restoration could arise. All the consequences of mora debitoris (particularly the strict liability) were thus immediately attributable to the debtor: "semper enim moram fur facere videtur."⁶⁸ 3.}

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

Requirements ofmora debitoris in Roman law

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