1. The "iron" rule of Roman law and the notion of an implied lex commissoria

"If, in the case of a synallagmatic contract, one party is in default in performing, the other party may give him a reasonable period within which to perform and warn him of his intention to refuse to accept the performance after the expiration of the period.

After the expiration of the period he is entitled to demand compensation for non-performance, or to withdraw from the contract, if the performance has not been made in due time.... If, in consequence of the default, the performance of the contract is of no use to the other party, such other party has the rights specified above without giving any notice"—

thus § 326 BGB.^[4128] Particularly interesting, from an historical point of view, is the right of the creditor to rescind the contract in case of mora debitoris. This is contrary to "an iron rule of Roman law" which the classical lawyers "unflinchingly observed";¹³¹ and although we have already seen that the rule was not quite as "iron" as Schulz leads us to believe,¹³² it is certainly true that principle of fidem frangenti fides frangitur of the medieval canon law; on which see, in the present context, Friedrich Merzbacher, "Die Regel Fidem frangenti fides frangitur' und ihre Anwendung", (1982) 68 ZSS (KA) 347 sqq.) and the "exceptio non adimpleti contractus" remained part and parcel of the ius commune down to the days of the pandectists (cf. e.g. Gluck, vol. 17, pp. 225 sqq.; Windscheid/Kipp, § 321, 1; for a historical analysis, see Schemer, Riicktrittsrecht. pp. 53 sqq.; cf. also Jansen J Ain BK Tooling (Edms.)Bpk. v. Scope Precision Engineering (Edms.) Bpk. 1979 (1) SA 391 (A) 416 sqq.) and was incorporated into the BGB ("Whoever is bound by a mutual contract may refuse to perform his part until the other party has performed his part, unless the former party is bound to perform his part first" (§ 320 11 BGB; cf.

also § 271 15 PrALR)). No provision corresponding to § 320 BGB exists in the French code civil, but courts and legal writers have applied the law as if it did (for details, see Nicholas, FEC. pp. 207 sqq.; cf. also Jansen JA in the BK Tooling case at p. 417A-D). The application of the exceptio non adimpleti contractus in modern South African law has led to considerable difficulties and confusion in cases where the plaintiff has been guilty of malperformance. May the defendant refuse to render counterperformance even though he is in possession of, and possibly even uses, the plaintiff's defective performance? In a famous trilogy of cases (Hauman v. Nortje 1914 AD 293; Breslin v. Hichens 1914 AD 312; Van Rensburg v. Straughan 1914 AD 317) it was established that the absolute nature of the exceptio non adimpleti contractus indeed precluded any contractual claim by the malperforming plaintiff; yet, in order to avoid inequitable results, an enrichment action for "quantum meruit" was granted (calculated by deducting the cost of remedying the defective performance from the contract price). This approach (based, probably, on a misunderstanding—De Vos, Verrykingsaanspreeklikheid. pp. 275 sqq.; De Wet en Yeats, pp. 181 —of Voet, Commentarius ad Pandectas. Lib. XIX, Tit. II, XL) has been subjected to severe criticism (cf. De Vos and De Wet en Yeats, loc. cit.; J.C. de Wet, "Die sogenaamde lawyers and, later, by the adherents of the school of natural law),¹³⁴ it was retained—at least as far as the theory of the Roman ins commune was concerned—down to the days of the pandectists.¹³⁵ It had taken a long time to establish the principle that even formless, merely consensual pacta are binding, and there appears to have been a natural reluctance to jeopardize the grand new idea of pacta sum servanda by recognizing a general unilateral right of withdrawal from contract.¹³⁶ In the case of mora a narrowly circumscribed exception had come to be recognized in 19th-century legal science,¹³⁷ but the fundamental break with traditional doctrine was effected only by the fathers of the BGB.¹³⁸ Conceptually, it was the lex commissoria that stood at the cradle of this development.¹³⁹ Thus we find Windscheid arguing that the right of withdrawal in case of mora debitoris could, under certain circumstances, be taken to have been (tacitly) agreed upon;¹⁴⁰ and even the BGB still refers to its provisions dealing with rights of rescission ex contractu¹⁴¹ when it deals with statutory rights of rescission in case of non-performance.¹⁴² Furthermore, since a lex commissoria had a resolutive effect, rescission of the contract was seen to remove the basis for a claim for damages. This explains the strict alternativity between damages for non-performance and rescission according to §§ 325 sq.

BGB.®

'exceptio non adimpleti contractus' in die praktyk van vandag", (1945) 9 THRHR 239 sqq.); in the BK Tooling case (1979 (1) SA 391 (A)) the Appellate Division ultimately took the opportunity to re-examine the matter. Use of the plaintiffs defective performance, it was now argued by Jansen JA, creates a discretion for the court to determine whether the defendant may raise the exceptio (and thus bar the plaintiffs claim for remuneration). In cases where the exceptio may not be raised, the plaintiff may bring his contractual action, albeit only for a reduced remuneration. For details, see Christie, Contract, pp. 419 sqq.; Joubert, Contract, pp. 232 sqq.; Zimmermann, RHR, pp. 116 sq.; cf. now also Thomas Construction (Ply.) Ltd. v. Grafton Furniture Manufacturers (Pty.) Ltd. 1986 (41 SA 510 (N); for the solution in German law of cases of this nature, cf. Emmerich, op. cit., note 83, § 320, nn. 11, 37 sqq.

^w Cf. supra, p. 579.

® Cf. e.g. Windscheid/Kipp, § 321, 2.

¹¹¹ Ijrser. Rücktritt vom Vertrag, p. 4.

^l" Cf. Windscheid/Kipp, § 280, n. 1; on the developments in 19th- century commercial law. see Karl Schemer, Rucktrittsrecht, pp. 157 sqq.

For a detailed discussion, see Leser. Rücktritt vom Vertrag, pp. 26 sqq.

¹⁵ Ijrser. Rücktritt vom Vertrag, pp. 16 sqq,

® Windscheid/Kipp, § 280, n. 1.

¹¹ §§ 346 sqq. For a concise overview of the remedy of rescission in German law (under which circumstances is it available?; what are its characteristic features?), see Brice Dickson, "The Law of Restitution in the Federal Republic of Germany: A Comparison with English Law". (1987) 36 International and Comparative Law Quarterly! 61 sqq.

“ § 327.

"Motive", in: Mugdan, vol. II, p. 116. The position is different in, for instance, French (art. 1184 II code civil), English and South African law. The alternativity of remedies in the BGB has often been criticized; cf. e.g. Leser, Rücktritt vom Vertrag, pp. 138 sqq.; Huber, op. cit., note 5, pp. 713 sqq., 763.

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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. The "iron" rule of Roman law and the notion of an implied lex commissoria

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