!!Экзамен зачет 2023 год / The Law of Obligations

equity". Nevertheless, the idea still prevails that specific performance is an exceptional remedy.223 It will not be granted where damages can adequately compensate the plaintiff, particularly in cases where a satisfactory substitute for what had been contracted for is readily available. Apart from that, contracts involving the rendering of personal services,224 the erection of a building, or the performance of continuous contractual duties225 are not specifically enforceable.22Й- 227 Furthermore, a decree of specific performance continues to be at the discretion of the judge: "Equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so."228 This discretion has, however, largely come to be governed by fixed rules and principles. Thus, for instance,22y specific performance can be refused if it would cause severe hardship to the defendant, if the contract has been obtained by unfair means or is unconscionable, if the conduct of the plaintiff himself has not been beyond reproach, or if the same remedy would not have been available to the defendant had the plaintiff been in breach of the contract (mutuality of remedy). Although there is a growing realization among Anglo-American authors ' 'that many of the arguments for restricting specific performance are no longer wholly convincing",230 and even though the courts, too, have in recent years been inclined to expand the scope of the remedy, the attitude adopted towards enforcement of the actual performance of a contract remains one of the fundamental differences between continental legal systems and the common law.231

7. Specific performance in South African law

Both traditions have to some extent been amalgamated in modern South African law. Its historical starting point, as we have seen, was a marked trend in favour of specific performance amongst the authoritative Roman-Dutch writers. Thus it was stated by Kotze CJ that

223 For details cf. Treitcl, Contract, pp. 785 sqq.; cf. also Zweigert/Kotz. pp. 192 sqq. 24 For the underlying reasons, see Zweigcrt/Kotz, p. 196.

22:1 Ryan v. Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116.

~26 Reason: the execution of a judgment for specific performance would involve great inconvenience. Hence also the exclusion of specific performance with regard Co contracts that are "vague".

227 On the other hand, specific performance is normally granted with regard to contracts involving the sale of land (also in favour of the vendor, even though his claim is only for money); where a satisfactory substitute cannot be obtained (sale of "unique" goods); where it would be difficult to assess or recover damages; where the damages would be purely nominal.

22H Stickney v. Keeble [1915] AC 386 at 419.

229Treitel, Contract , pp. 788 sqq.

230Trcitel, Contract, p. 785; cf. also Dawson. (1959) 57 Michigan LR 532; Alan Schwartz, "The Case for Specific Performance", (1979) 89 Yale LJ 271 sqq.; but see William Bishop,

"The Choice of Remedy for Breach of Contract", (1985) 14 Journal of Legal Studies 299 sqq. ~-31 For a comparative evaluation, see Zweigert/Kotz, pp. 197 sqq.

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"[b]y the well-established practice of South Africa, agreeing with the Roman-Dutch law, suits for specific performance are matters of daily occurrence".233

Nevertheless, in the course of the 19th century, rules and criteria of the English common law crept in "insidiously and, as it were, almost by accident",233 so much so that the grounds for refusing specific performance listed by some academic writers in the early part of the 20th century were virtually the same as those applied by English courts.234 In Haynes v. King Williamstown Municipality,2^ for many years the leading case, it was held that the court has a discretion to refuse specific performance, and that such refusal would be appropriate,

"(a) where damages would adequately compensate the plaintifr; (b) where it would be difficult for the court to enforce its decree; (c) where the thing claimed can readily be bought anywhere; (d) where specific performance entails the rendering of services of a personal nature . . .; (e) where it would operate unreasonably harshly on the defendant, or where the agreement giving rise to the claim is unreasonable, or where the decree would produce injustice or would be inequitable under all the circumstances".236

Only in the 1980s have the courts begun to reassess these principles and to shed the limitations of specific performance derived from English practice.237 In Benson v. SA Mutual Life Assurance Society2™ the Appellate Division firmly and authoritatively set its face against the continuation of a reception process which disregarded the fundamental difference in principle between Roman-Dutch and English law. The right of every plaintiff to claim specific performance has, once again, become "the cornerstone"234 of South African law. It is the primary and regular remedy. To this extent, therefore, the civilian principle has prevailed. Unlike their modern continental counterparts, however, the courts do retain a discretion to refuse specific performance. This discretion obviously has its roots in English Equity: but it is no longer subject to any rules save that it be judiciously excercised in order to prevent injustice.240 In particular, therefore, South African law has freed itself from the restrictive categories developed by the English courts.241

232 Cohen v. Shires, McHattie and Кщ (1882) 1 SAR 41 at 45.

231 Sir John Wcssels, "The Future of Roman Dutch Law in South Africa", (1920) 37 SAL] 272.

214 Wessels, Contract, %% 3113 sqq.; Gross, (1934) 51 SAL] 364 sqq.

z" 1951 (2) SA371 (A).

21(1 At 378H-379A.

237 Cf. e.g. hep Structural Engineering and Plating (Ply.) Ltd. v. Inland Exploration Co. (Pty.) Ltd.

1981 (4) SA 1 (A); cf. also Dc Wet en Yeats, pp. 190 sq.

23M 1986 (1) SA 776 (A).

2y> At 782J.

24" At 782J-783F.

241 For a more detailed discussion of the approach of the South African courts, ct. Jouberl, Contract, pp. 224 sqq.; Andrew Beck, "The coming of age of specific performance". 1987 Cilsa 195 sqq., 204 sqq. As a consequence, for instance, the mere fact that a contract involves personal services does not automatically bar a decree of specific performance; cf. e.g.

National Union of Textile Workers v. Stag Packings (Pty.) Ltd. 1982 (4) SA 151 (T) at 158A-C.

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CHAPTER 25

Breach of Contract

I. BREACH OF CONTRACT IN GENERAL

1. Introduction

Every contractual promise engenders expectations in the person of the promisee. These expectations can be disappointed in various ways: the promisor may fail entirely to perform, he may offer performance belatedly or at the wrong place, or his performance may turn out to be unsatisfactory. In all these cases the promisor has not complied with the duties imposed upon him by the contract. In the terminology of the English common law, a breach of contract has occurred. The French code civil refers to non-performance ("inexecution")^ The German BGB, however, does not appear to know such a unitary concept. It deals with only two specific forms of breach of contract (or: reasons for non-performance)—supervening impossibility and delay of performance— and provides separate sets of rules for both of them.2 These rules are of a general nature in so far as they apply to all contracts. The same is true of the doctrine of "positive malperformance", which is not embodied in the code, but had to be developed, extra legem, by courts and legal writers.3 Special rules dealing with liability for defective performance are set out in some of the titles of the BGB dealing with specific contracts.4 This fragmented and unnecessarily intricate way of dealing with the problem of breach of contract has been severely criticized and is ■widely regarded today as one of the more unfortunate features of the German Code.5 It is based on pandectist doctrine, and, through it, ultimately on the sources contained in the Corpus Juris Civilis. This leads us back to the approach adopted by the Roman lawyers which, in turn, depended on the type of action applicable in an individual case.

2.Certam rem dare obligations

(a)Supervening impossibility

We shall start our discussion by looking at the actiones stricti iuris entailing certam rem dare obligations. A has promised, by way of stipulation, to deliver the slave, Pamphilus, to В on 10 October. After

1 Cf. art. 1147 code civil, also art. 1184; Zwdgert/Kotz, pp. 213 sqq. 2% 280 sqq., 325 sq. BGB.

3Cf. infra, pp. 812 sq.

4§§ 459 sqq. (sale), §§ 537 sqq. (lease), §§ 633 sqq, (contract for work).

5Cf. e.g. Ulrich Hubcr, "Lcistungistorungen", in: Gutachten itnd Vorschlage гиг Oberarbeititng des Schuldrechts, vol. I (1981), pp. 756 sqq.; Zweigert/Kotz, pp. 232 sqq.

783

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this promise has been made, but before the time for delivery arrives, Pamphilus dies. Thus on 10 October A is unable to satisfy B's claim. If В were to sue A, the judge would have to absolve the latter. From the point of view of substantive law, this result may bejustified in terms of the rule that "ought" implies "can": if A cannot perform, he can be under no obligation to do so. Impossibilium nulla est obligatio: in case of initial impossibility of performance an obligation cannot come into existence/' impossibility occurring after conclusion of the contract makes it fall away again. Hence the statement by Pompomus: "Verborum obligatio . . . naturaliter resolvitur . . . cum res in stipulationem deducta sine culpa promissoris in rebus humanis esse desiit."7 Under procedural auspices, the matter was determined by the wording of the formula. On account of a stipulation concerning delivery of a specific thing В could ask to be granted the condictio (certae rei).8 The programme of litigation was therefore settled in the following terms: "Si paret Nm Nm A° A° Pamphilum servum dare oportere, quanti ea res est, tantam pecuniam iudex N'n N"1 A° A° condemnato, si non paret absolvito." First of all, therefore, the judge had to determine whether "it appeared" that A had to hand over the slave Pamphilus to B. The answer was clearly in the negative; for how can a person be obliged to hand over what does not exist?9 Both obligation and iudicium had lost their object. And, secondly: condemnation involved assessment of the pecuniary value of the object in question at the time of litis contestatio ("quanti ea res est").10 At the relevant moment Pamphilus was dead, his value zero. As a result, A could not be condemned in any sum of money, and B's claim was therefore bound to fail.11

(b) Perpetuatio obligationis

Clear-cut and straightforward as it may seem, this result is clearly unsatisfactory if Pamphilus' death had been attributable to A: for it would be strange to see a debtor terminate his obligation by negligently or perhaps intentionally removing the object12 that he was supposed to hand over. It was in order to address this problem that the Roman lawyers resorted to a simple and pragmatic device: they introduced a fiction.13 If the impossibility was due, in some way or other, to the

'' Cf. supra, pp. 687 sqq.

7D. 46, 3, 107.

8Cf. supra, pp. 36, 90.

9Cf. supra, p- 687.

10 Kascr, RZ, p. 242.

1 Cf. Dieter Mcdicus, "Zur Funktion der Leistimgsunmoglichkeit im romischen Recht", (1969) 86 ZSS 75 sqq.; Max Kascr. "Pcrpetuan obligationcm", (1980) 46 SDHI 127 sq.

12C(. e.g. Pomp. D. 45, 1, 23 {". . . si . . . occidisti eum").

13A fiction often helped them Co achieve a satistactory solution to a problem by making it possible to apply an already existing (set of) rulc(s) that would otherwise not have covered

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behaviour of the debtor, the object of the performance was deemed to be still in existence: "Cum facto promissoris res in stipulatum deducts intercidit, perinde agi ex stipulatu potest, ac si ea res extaret: ideoque promissor aestimatione eius punitur."14 If the situation is to be treated as if Pamphilus were still alive, it is in fact possible to say that A "appears to have to give the slave to B". Also, the judge can condemn A into "quanti ea res est, tantam pecuniam", that is, the (presumptive) market value of Pamphilus at the time of litis contestatio. As a result, therefore, the obligation continues to exist; it is, as the Roman lawyers put it, "perpetuated".15 It was the perpetuatio obligationis, which enabled the creditor to claim the slave (and thus to obtain its pecuniary value), even though performance was no longer possible: "Effectus huius constitutionis1*1 ille est, ut adhuc homo peti possit."17

It should be noted that impossibility, in the present context, means objective impossibility. If the debtor was not able to perform, whereas another, third party was (subjective impossibility), no fiction was necessary to hold the debtor liable. "Si paret . . . Pamphilum servum dare oportere" was not untrue, for Pamphilus could in fact be transferred (though not by this particular debtor). Also, since he was still alive at the time of litis contestatio, the "quanti ea res est, tantam pecuniam" clause presented no difficulty. Just as subjective initial impossibility did not prevent the obligation from coming into being,18 so mere subjective supervening impossibility had no effect on its continued existence;19 whoever promised something which was and remained objectively possible to perform was seen to guarantee his ability to render such performance.

(c) Culpa

Perpetuatio obligationis required that the (objective) impossibility was attributable to the debtor; or, in the parlance of the Roman lawyers: the debtor was liable "si per eum stetit, quo minus daret."20 But when was

this situation; for another example cf. supra, p. 135. As far as the development of the English common law is concerned, cf. e.g. Simpson, History, pp. 301 sq.

14Paul. Sent. V, VII, 4; cf. also Ulp. D. 45, 1, 82, 1 (". . . perinde ac si homo viveret").

15Cf. particularly Paul. D. 45, 1, 91, 3-6. On this treatise (" Sdiuttraktat") Theo Мауег-Maly, "Perpetuatio obligationis: D. 45, 1, 91", (1956) 7 lura 6 sqq. On perpetuatio

obligationis, cf. further Horst Heinrich Jakobs, UnmogUchkeit und Nichterfiillung (1969), pp. 173 sqq. and Maria Bianchi Fossati Vanzetti, Perpetuatio obligationis (1979), passim, who argue however that it was an institution applicable to all types of contractual obligations

( I'unica e generate sohtzione romana del problema [dell' inadempimento]"); contra: Kascr, (1980) 46 SDH! 130 sqq.

16This refers to Paul. D. 45, 1, 91, 3, where the device of perpetuatio obligationis is ascribed to a constitutio veterum. On the history of perpetuatio obligationis, sec Kaser, (1980) 46 SDHI 129 sq.

17Paul. V. 45, 1, 91, 6.

1S Cf. supra, pp. 293, 687 sq.

19Kaser, RPrl, p. 514.

20Cf. e.g. Pomp. D. 45, 1, 23.

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an event "attributable" to the debtor? The answer is provided by Paulus, according to whom "quotiens culpa intervenit debitoris, perpetuari obligationem".21 "Culpa", in this context, is not just the Roman equivalent of our modern concept of negligence; nor does it merely indicate that the debtor must have caused the impossibility. The term "culpa"22 contained an element of disapproval, in that the debtor's behaviour had fallen short of what was expected of him according to the precepts of both ius and mos. At the same time, however, it was not the notion of individual blame that lay at the heart of the investigation, but the typicality of the debtor's behaviour. What mattered was whether the debtor had acted in a manner that was typical for a person to whom "fault" could be attributed. This was the case, particularly, where he had brought about by his own act (factum) the destruction of the object, which he knew or ought to have known he was bound to deliver.23 Thus, for instance, a promisor who killed the slave he owed continued to be bound: ". . . si quidem occidat eum promissor, expeditum est."24 The direct act of killing warranted the label "culpa": the debtor could be seen to have been at "fault" when he put himself in a position in which performance of the obligation was no longer possible.25 Factum implied culpa and was therefore often substituted for it. This did, however, not mean that culpa relevant to liability under a stipulation could not consist in an omission. It was only much less obvious and could not be accepted except after careful examination and under special circumstances. In D. 45, 1, 91 pr. Paulus considers the position of a promisor who omitted to provide medical treatment for a sick slave that he was bound to deliver. Eventually the slave died.

"[C]ulpa, quod ad stipulatorem attinet, in faciendo accipienda sit, non in tion facicndo . . . quia qui dari promisit, ad dandum, non faciendum tenctur."26

This is a slightly formalistic argument: the promisor is required merely to convey the slave (dare), not to perform any other activity (facere); hence there can be no liability for a non-facere such as failure to provide medical treatment. But the solution appears to have been controversial,

21 D. 45, 1, 91, 3.

32 Cf. particularly Cannata, Colpa, pp. 90 sqq.; Geoffrey MacCormack, "Culpa", (1972) 38 SDHI 123 sqq; Kascr, (1980) 46 SDHI 93 sqq.

23 Cannata, Colpa, pp. 90 sqq.; Geoffrey MacCormack, "Factum debitoris and culpa debitoris", (1973) 41 TR 59 sqq.

24Paul D. 45, I, 91 pr.

25Cf. MacCormack, (1973) 41 TR 68, who lists the following possibilities: "The promisor, aware of the promise, may deliberately kill the slave in order to prevent his

acquisition by the promisee; or temporarily unmindful of the promisee he might kill him in a fit of anger. Or he might bring about the death of the slave through some careless act. In all these cases it can be held that the promisor has been at fault. The essence of fault lies in the fact that the promisor ought to be aware of the promise and therefore not behave in a

way that will make it impossible for him to convey the slave to the promisee." 2t> Paul П. 45, 1, 91 pr.

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and even Paulus cannot be seen as having ruled out in principle liability for behaviour other than a factum.27

(d) Mora debitoris

"Quotiens culpa mtervenit debitoris, perpetuari obligationem": this statement applied to cases where the promisor's "fault" related to the event which made his performance (objectively) impossible. But it was also applicable in another situation. Even if the promisor had not himself brought about his inability to convey what he had promised: that is, even if the object in question perished accidentally, he was still held liable if he had delayed performance beyond the due date (mora debitoris). Mora debitoris, too, was based on culpa2H and therefore justified perpetuation of the promisor's obligation; for in a certain, albeit somewhat indirect sense, the supervening impossibility was still attributable to the debtor's behaviour. Since it entailed an extension of the debtor's liability, the requirements for mora debitoris had to be specified, and it thus became the second type of "breach of contract" giving rise to liability for "quanti ea res est".

(e) Deterioration of the object promised

Performance, of course, need not be completely impossible; the debtor may still be able to transfer the object promised, but the object may have deteriorated in the meantime. If such deterioration was attributable to the promisor, performance no longer terminated his liability: ". . . qui hominem dari promisit et vulneratum a se offert, non liberatur."29 Again, the promisor's obligation was "perpetuated" fictitiously, for the "rem dare oportere" of the intentio was deemed not to have been satisfied, although the (defective) object had in fact been handed over. As a result, performance could still be demanded: ". . .

adhuc tamen ipsa res petenda est."30 When it came to the assessment of "quanti ea res est", the judge was, however, probably required to take into account the value of what the stipulator had received;31 thus, in the end, he obtained judgment for the difference in value between the object as it actually was and as it should have been.

3. Other types of obligations stricti iuris

We have so far only been looking at "certain rem dare" obligations and the actions applicable to them. Wherever a specific sum of money or the

27MacCormack, (1973) 41 TR 64; Kaser, (1980) 46 SDHl 95.

28Cf. infra, pp. 791 sqq.

14 Inl. D. 46, 3, 33, 1; cf". further e.g. Iul. D. 30, 84, 4 and Erich Genzmcr, "Dcr subjektive Tatbestand des Schuldnerverzugs im klassischen romischen Recht", (1924) 44 ZSS 103 sqq.; Manlio Sargenti, "Problemi della responsabilita contrattuale" (1954) 20 SDHl 194 sqq.; Kaser, (1980) 46 SDHl 103 sq. For the time before Julian, cf. Lab./Ulp. D. 4, 3, 7, 3. Labeo operates with the actio de dolo.

10 Ulp. D. 46, 3, 27; cf. also Scaev. D. 45, 1, 131, 1. 31 Kaser, (1980) 46 SDHl 138.

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supply of unascertained goods was owed under an obligation stricti iuris (actio certae creditae pecuniae, "condictio triticaria"), no fictitious perpetuation was required to keep alive the debtor's obligation. Even when the debtor himself had run out of money, it was still not untrue to maintain "si paret Nm Nm A" A° sestertium decem milia dare oportere". Owing to the availability of money in general, performance could not become objectively impossible; the debtor always remained liable to pay.32 The actio depositi in factum concepta presents an example of another type of claim—what the debtor owed was certam rem reddere:

"Si paret A"1 Am apud Nm N"1 mensam argenteam dcposuisse eamque dolo malo Nl N1 A° A" redditam non esse, quanti ea res crit, tantam pccuniam. . . ."■"

Condemnation of the depositary depended on non-performance of his obligation to return the silver table. Why the depositor did not receive his table back was immaterial, save that it had to be owing to the depositary's dolus malus; thus, for instance, it did not matter whether the table had been destroyed (objective impossibility) or sold to a third party (subjective impossibility) or whether the depositary merely did not wish to hand it back. Neither did one have to employ the device of perpetuatio obligationis, nor was it in fact necessary to distinguish between different forms of breach of contract.34 More particularly, objective impossibility did not have the same key significance that it had in the case of "certam rem dare" obligations. Problems could arise only in cases where the object of the deposit had deteriorated; for here, according to the formula, the depositary could not be condemned even when the deterioration had been attributable to his dolus malus; for the condition on which condemnation depended ("eamque . . . redditam non esse") had not materialized. The difficulty was resolved essentially in the same way as in the case of certam dare obligations:

"Si reddita quidem sir res [deposita], scd deterior reddita, non videbitur reddita, quae deterior facta redditur, nisi quid interest praestetur: proprie enim dicitur res non redditur, quae deterior redditur."35

Something which is returned in a worse condition is deemed not to have been returned at all.

4. Actions with a formula incerta

Finally, there were the claims with a formula incerta. They were all characterized by the clause "quidquid ob earn rem Nm Nm A° A° dare facere oportet, eius iudex Nm Nm A" A° condemna . . .", the "quidquid ob earn rem" in turn referring to a set of facts related in the

32As far as obligations to deliver fungible things are concerned, cf. Cannata, Colpa,

pp58 sqq.

33Gai. IV, 47.

34Cf. also Medicus, (1969) 86 ZSS 98 sq.

Ulp. D. 13, 6, 3, 1; cf. also Ulp. D. 16, 3, 1, 16.

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preceding demonstratio. The actio ex stipulatio (incerti) fell into this category ("Quod As As de № № incertum stipulates est. . . "36); so did the actio depositi in ius concepta ("Quod As As apud Nm Nm mensam argenteam deposuit, qua de re agitur . . ,"37) as well as all actions arising from any of the consensual contracts. In these latter instances the intentio was extended by the words "ex fide bona". "Quidquid ob earn rem . . . dare facere oportet" remained "true", even if the object deposited or sold had been destroyed. "In obligatione" was not merely the duty to give or return a specific (existing) object, but "to give or to do" whatever the debtor/defendant ought to give or do on account of (for instance) the deposit or the sale. This could obviously be, in appropriate cases, the payment of id quod interest (damages). Again, therefore, no perpetuatio obligationis was required in order to arrive at liability for non-performance; and again, the crucial factor for determining condemnation or absolution was the standard of liability for which the debtor was responsible (dolus and, possibly, culpa lata in case of a depositum,38 custodia when the object of a sale had been destroyed "emptione perfecta" but before delivery);39 a specific categorization of the reasons for non-performance was not required. The debtor was thus liable whenever he had not performed at all or had not performed properly, provided only that such failure was attributable to him according to the rules of the specific contract.

Particularly interesting, in the present context, are the bonae fidei iudicia, where the judge was asked to establish "quidquid . . . Nm Nm A° A° dare facere oportet ex fide bona": with regard both to the estimation of the object of performance and to the establishment of the ambit of the debtor's liability the judge enjoyed a far-reaching discretion. The debtor had to adjust his behaviour in accordance with the precepts of good faith, and was thus subject to a whole range of duties of care. Infringement of these duties led to a claim for damages. Thus, a mandatarius was liable who had reported falsely that a person was solvent to whom the mandator was about to make a loan.40 The actio. pro socio was available if one of the partners had fraudulently or negligently failed to make a good bargain.41 A shoemaker was liable under the actio locati, if he had struck the neck of his apprentice with a shoe last so forcefully that the poor boy's eye popped out.42 Many more cases could be quoted.43 Under certain circumstances, the

36Gai. IV, 136.

37Gai. IV, 47.

3H Cf. supra, pp. 208 sqq.

39 Cf. supra, p. 287. 4(1 Ulp. D. 17, 1, 42.

41Cf. Ulp. D. 17, 2, 52. 11.

42Ulp. D. 19, 2, 13, 4; cf. also Ulp. D. 9. 2, 5. 3.

43Cf. e.g. Friedhelm Harting, Die "positiven Vertragsverietzungen" in der neueren deutschen Privatrechtsgeschichte (unpublished Dr. iur. thesis, Hamburg, 1967), pp. 22 sqq.

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plaintiff was even able to recover consequential damages; the leaky vats and toxic plants of Pomp. D. 19, 1, 6, 4 and Ulp. D. 19, 2, 19, I44 immediately spring to mind in this regard.45

II.MORA DEBITORIS

1.Consequences of mora debitoris in Roman law

All in all it has become apparent that the way in which the Roman lawyers dealt with breach of contract depended on the type of procedural remedy applicable in the individual case. There was only one form of breach of contract on the part of the debtor that received special attention and became institutionalized across the board, and that was mora debitoris. We have already seen that failure by the debtor to discharge a "certam rem dare" obligation within the time allotted to him had the effect of increasing his liability: he became responsible for any incident that made performance impossible, no matter whether it was due to his fault or whether it had occurred accidentally.46 But this rule was not confined to certam rem dare obligations. Whatever the debtor owed, mora (debitoris) placed the risk of any accidental destruction of the object of performance on his shoulders. This appears to have been the case even if the loss was not in any way causally related to the delay of performance. Thus, for instance, a debtor in mora was liable if the piece of property that he had promised was destroyed by virtue of a landslide.47 The fact that the landslide would have hit the estate, even if it had been transferred in time, does not seem to have mattered.48 With regard to claims for an incertum, particularly the iudicia bonae fidei, mora debitoris had further consequences: the creditor could claim the fruits which the object of performance yielded

44Cf. supra, pp. 365 sqq.

45Cf. further, for example, Ulp. D. 19, 1, 13 pr.; Ulp. D. 19, 1, 13, 1 and 2.; Lab. D. 19, 2, 60, 7; Ulp. D. 9, 2, 27, 34; Paul. D. 19, 1, 21, 3; for details see Medicus, Id quod interest, passim.

46For details, see Kaser, (1980) 46 SDHI 139 sqq; Schulz, EinJUhrung , pp. 106 sqq.

47Ulp. D. 30, 47, 6: "Item si fundus chasmate perierit, Labeo ait utique aestimationem non deberi: quod ita verum est, si non post moram factam id evenerit: potuit eni m cum acceptum legatarius vendere."

48But the rationalization of this result (the creditor could/might have sold the estate before its destruction; cf. the sentence commencing with "potuit") is probably spurious; cf. Schulz, Emjtihrung, p. 108, but see also Kaser, (1980) 46 SDHI 143 sq.; Andreas Wacke, "Gefahrerhohung als Besitzerverschulden", in: Festschrift fur Heinz Htibner (1984), pp. 681 sqq. Gai. D. 16, 3, 14 is often quoted in support of the proposition that with regard to incertum claims the position was different: debtor released if object would have been destroyed in any event, i.e. also in cases of timeous performance; cf., for example, Kaser, RPr I, p. 516; Honsell/Mayer-Maly/Selb, pp. 246 sq. This text does, however, not deal with mora debitoris; cf. Bianchi Fossati Vanzetti, op. cit., note 15, pp. 49 sq.; Max Kaser, "Grenzfragen der Aktivlegitimation zur actio furti", in: De iustitia et hire, Festgabe fur Ulrich von Liibtow (1980), pp. 301 sq.

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