!!Экзамен зачет 2023 год / The Law of Obligations

during the delay.49 Where money was owed, the debtor became liable for interest.50 Apart from that, he had to compensate the creditor for any damage arising from the default.51

2.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 actionable52 and due.53 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 prove that he was not at fault in failing to render performance;54 an interpellatio, on the other hand, is dispensable if a specific time on the calendar had been fixed for performance.55 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.56 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.57 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.58

(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

49 Pap. vac. 15; Paul. D. 22, 1, 38, 8; Ulp. D. 17, 1, 10, 2 and 3 and 8 and 9; Ulp. D. 3, 5, 7, 1; Paul. D. 17, 2, 38, 1; Paul. Sent. II, XII, 7; III, VIII, 4.

50Mard. D. 22, 1, 32, 2; Afr. D. 46, 6, 10; Paul. D. 19, 2, 54 pr.

51Honsell/Maycr-Maly/Selb, p. 247; Honsell, Quod interest, pp. 16 sqq., 167 sqq.

52Scaev. D. 45, 1, 127.

53Paul. D. 45, 1, 49, 3: "Si promissor horninis ante diem, in qucm promiserat, interpellate sit et servus decesserit, non videtur per eum stetisse."

54This appears from the way in which § 285 BGB has been drafted: "The debtor is not

in default so long as the performance does not take place because of a circumstance for which he is not responsible."

55§ 284 II BGB.

56Hcinrich Siber, Interpellatio und Mora, (1908) 29 ZSS 47 sqq.; cf also Kaser, RPr I, p. 515.

57Agostino Elefante, " 'Interpellatio' e 'mora' ", (1960) 6 Labeo 30 sqq.; Horst Heinrich Jakobs, "Culpa und interpellatio bei der mora debitoris nach klassischem Recht", (1974) 42

TR 23 sqq.; Honsell/Mayer-Maly/Selb, p. 245.

5Я Cf., in particular, Genzmer, (1924) 44 ZSS H6 sqq.

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dolus and culpa, nor were they interested in isolating and delimitating subjective (culpa) and objective (interpellatio) elements of liability. The best starting 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.61 If, indeed, he knew and still did not perform (without good reason},62 the term "dolus malus" could be appropriately used to label his behaviour.63

(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".64 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;65 for if the

59Paul. D. 45, 1, 91, 3.

60D. 22, 1, 32 pr.

61Cf.. for example, Kaser. (1980) 46 SDHI 111 sq.

62Cf., for example, Ulp. D. 22, 1, 23 pr. ("si rei publicae causa abesse subito coactus sit", "si . . . in vinculis hostiumve potestate esse coepent"); Ulp. D. 22, 3, 19, 1; Ulp. D. 38, 1,

15 pr.; for further details, see Kaser, (1980) 46 SDHI 116 sqq. й Cf. e.g. Iul. D. 50. 17, 63.

64Cf. e.g. Marci D. 22, 1, 32 pr.; Kaser, (1980) 46 SDHI 106.

fo Hence the fact that culpa is often not mentioned in our sources as a special requirement

for mora.

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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.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 . . . frustratoria dilatio"69 is a definition representative not only of 17th-century jurisprudence. Struve has "solutionis debito tempore praestandae . . . injusta seu frustratoria dilatio",70 Muhlenbruch "injustam restitutionis solutionisve . . . faciendae . . .

cessationem".71 Particularly important is the reference to fault. Mora is

flft Cf. e.g. Pomp. D. 12, 1, э: "[S]cd cum quaeratur, an per te factum sit, animadverti debebit . . . si aliqua iusta causa sit. propter quam intellegcre deberes te dare oportere." The term "iusta causa" must be taken to refer to an interpellatio; cf,, particularly, Kaser, (1980) 46 SDHI 106 sqq.

"7 Marci. П. 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 modern law, cf. Jens Peter Meincke, "Kann § 848 BGB gestrichen werden?", 1980 Juristenzeitung 677 sq.; Wacke,

Festschrift Hiibner, pp. 683 sqq.

m Voet, Comamentarius ad Pandectas, Lib. XXII, Tit. I. XXIV. 7(1 Syntagma, Exerc. XXVII, Lib. XXII, Tit. I, LXV.

Doctrina Pmidectamm, % 355.

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culpable delay of performance.72 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."73 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.74

(b)Impossibility and difficultas praestationis

Impossibilitas superveniens was sometimes regarded as a specific causa excusandi,75 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".76 Since impossibility on account of casus, however, had the effect of releasing the debtor from his obligation,77 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.78 A concession was, however, made in that difficultas came to be accepted as a valid excusatio morae. The medieval canon lawyers generally tended to regard the debtor as the weaker party, requiring the assistance of the law; and more particularly, they were concerned about protecting him from the consequences of mora (which they regarded as

72 Cf. e.g. West Rand Estates Ltd. v. New Zealand Insurance Co. Ltd. 1926 AD 173; Ernst Hcymann, Das Verschulden beim Erfiillungsverzug (1913), pp. 88 sqq., 108 sqq. and passim; I. van Zijl Steyn, Mora Debitoris volgens die Hedendaagse Romeins-Hollandse Reg (1929), pp. 43 sqck; Wouter de Vos, "Mora Debi'tons and Rescission", (1970) 87 SALJ 307.

Ь Voet, Contmentarius ad Pattdectas, Lib. XXII, Tit. I, XXIX.

74 For details cf. e.g. Dilcher, Leistungsstorungen, pp. 40 sqq.; Van Zijl Steyn, op. cit., note 72 pp. 43 sqq.

Wollschlager, Urtmoglichkeitslehre, pp. 46 sqq.; Van Zijl Steyn, op. cit., note 72, pp. 45 sqq.; c{. still Wessels, Contract, § 2862 ("Impossibility of performance is, of course, also an

'' Ulp. D. 50, 17, 23 in fine; cf. further Dilcher, Leistungsstijmngen, pp. 90 sqq.; Gliick, vol. IV, pp. 368 sqq.; Wollschlager, Untnoqlichkeitslehre, pp. 45 sq.

77Cf. e.g. supra, pp. 759. 784.

78But cf. e.g. Zasius ("magna difficultas impossibilitati aequiparatur"), as quoted by Wollschlager, Vnmogtichkeitstehre, p. 48.

1С,

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a delict), unless his behaviour was ethically unacceptable.79 It was (probably) under their influence that the commentators formulated the doctrine of "difficultas non tollit obligationem, sed excusat a mora".80 Some writers wanted to restrict this rule to obligations involving specific objects, but the extension of "difficultas excusat a mora" to obligations concerning generic things, particularly money debts, dominated the scene, even after the end of the Middle Ages.81 Poverty (insolvency), as long as it was not attributable to his fault, thus protected the debtor from the consequences of mora debitoris.82 Modern law is less favourable to the debtor: the mere difficulty of rendering performance, especially the lack of money on the part of the debtor, is not considered a valid excuse.83

(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.84 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.85 This, obviously, is the Roman interpellatio. Since the days of the glossators,86 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".87 One informal, extrajudicial interpellatio appears to have been very widely regarded as sufficient,88 although Wissenbach clearly goes too far when he refers to a "communis Doctorum opinio".89 According to Perezius,90 the question was

79 Cf. e.g. Endemann, Studien, vol. II, pp. 258 sq.; Heymann, op. cit., note 71, pp. 102 ff.; E.M. Meijers, "Essai historique sur la force majeure", in: Etudes d'Histoire du Droit, vol. IV (1966), p. 48 sqq. According to canonist doctrine, it was the creditor who had to prove that the delay of performance on the part of the debtor was inexcusabilis.

m For details, see Dilcher, Leistungsstorungen, pp. 43 sq.; cf. also Robert Feenstra, "Impossibilitas and Clausula rebus sic stantibus", in: Daube Noster (1974), p. SO; Going,

p.436.

41 Heymann, op. cit., note 72, pp. 105 sqq.; Feenstra, Daube Noster, p. 80; Coing, p. 436.

M2 Cf. still Windscheid/Kipp, § 277, 4 in fine.

83Joubert, Contract, p. 206; Alfred Walchshofer, in: Miinchener Kommentar, vol. II (2nd ed., 1985), § 285, n. 4; Volkcr Emmerich in: Miinchener Kommentar, op. cit., § 275, n. 53.

84§ 285 BGB; for South Africa cf. Joubert, Contract, p. 205.

8;> § 284 I BGB; for South Africa cf. Van Zijl Steyn, op. cit., note72, pp. 52 sqq.; Joubert, Contract, pp. 202 sqq.

Я6 Heymann, op. cit., note 72, pp. 88 sqq.; Dilcher, Leistungsstorungen, pp. 44 sqq., 51.

87Commentarius ad Pandectas, Lib. XXII, Tit. I, XXV.

88Cf., for example, Voet, Commentarius ad Pandectas, Lib. XXII, Tit. I, XXV; Van Zijl

Steyn, op. cit., note 72, p. 54.

ъ> Exercitationes, Disp. XLII, Lib. XXII, 15.

щ> Praelectiones in Codicem, Lib. IV, Tit. XXXII, 27.

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controversial and, in fact, there were authors who required more than one warning.41 But, as Perezius put it: ". . . rectius illi sentiunt, qui unicam legitime factam sufficere arbitrantur, cum qui certior factus est, non debet amplius certiorari."92 Others were not so much concerned with the number of interpellationes, and (implicitly) with the consistency of the creditor's behaviour,93 but with the form and manner in which the demand was made. Thus, in France the debtor was traditionally ("suivant nos usages")94 seen to be in mora only if he had received "une interpellation judiciaire". Even under the code civil,

"mise en demeuere" still requires "une sommation", a formal notice demanding performance and served through a huissier.95 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."9fi

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]".97 Hence, if "interesse, usurae et similia"98 were to be claimed on account of mora debitoris, they had to be included in the "petitio iudicialis".

(d) 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.99 Nevertheless, in a strange and

91Cf. Van Zijl Steyn, op. cit., note 72, p. 57.

92Praelecliones in Codicem, Lib. IV, Tit. XXXII, 27.

93Cf. the qualifying remark by Voet, Commentarius ad Pattdectas, Lib. XXII, Tit. I, XXV:

". . . si modo ei interpellans inhacserit." Pcrezius, loc. cit., writes: "Itaque instantia post interpellationem perseverare debet; sed non est repetenda interpeilatio, seu admonitio coram testibus nuncupata."

y* Pothier, Traite des obligations, n. 144.

95 Art. 1139 code civil, but the code adds: "on [un] autre acte equivalent"; on this clause, see, for example, Nicholas, FLC, p. 232. In contrast to modem German law, incidentally, mise en demeure is an essential prerequisite for every claim for damages in case of breach of contract, no matter whether for delay or non-performance: art. 1146 code civil; cf. further Zweigert/Kotz, pp. 213 sqq., 217.

% Perezius, Praelecliones in Codkem, Lib. IV, Tit. XXXII, 28; based on lul. D. 12, 1, 22 (". . . per iudicem petitum est").

97 Pcrezius, loc. cit.

9Я Perezius, loc. cit.

99 Cf. supra, pp. 547 sqq.

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rather confusing way the older view lingered on, at least amongst the Roman-Dutch authors. For even though it was usually recognized that an informal, extrajudicial demand was sufficient to put the debtor in mora, many authors held that interest could be claimed only from the time of litis contestatio. Voet provides a good example. His statement in Lib. XXII, Tit. I, XXV of the Commentarius ad Pandectas on the general requirements of mora ex persona appears to be quite unequivocal: ". . . induci potest [sc: mora] per unam interpellationem legitime factam, sivejudicialem sive extrajudicialem." But this did not mean that all the consequences of mora debitoris came into effect immediately. If we look to section XI of the same title of book XXII, we find the following assertion:

"Nostris vero moribus . . . regulariter ex sola mora extrajudidali usurae nee in bonae fidci nee in scricti iuris negotiis adjudicandae sunt; post litcm vero contestatam utrobique omnino. . . ."l0"

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".101 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",102 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.103 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 legc introducitur sine facto hominis, seu 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

10" Cf. further Van Zijl Steyn, op. cit., note 72, p. 55.

101Victoria Falls & Transvaal Power Co. Ltd. v. Consolidated Langlaaqte Mines Lid. 1915 AD

1at 31.

1021926 AD 173 at 183.

"l 3 Joube rt, Co ntra ct, p. 203; D e We t e n Ye ats, p. 145. 104 J

Voet, Commentarius ad Pandectas, Lib. XXII, Tit. I, XXVI.

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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".107 The glossators generalized the idea inherent in this piece of legislation,108 and thus "dies interpellat pro homine" emerged as a widely recognized principle of the ius commune.109 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 writers110 about the true position in Roman law were able to

endanger its continued application.111 Dies interpellat pro homine has become part and parcel of South African law112 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 (ou autre acte equivalent)" which we still find in the code civil.113 It is essential for the mise en derneure even where the contract has specified a time for performance.114 Only where the nature of the obligation is such that it can only be

105C. 8, 37, 12 (Just.).

106Arrival of the due day takes the place of the creditor in demanding performance: Nicholas, FLC, p. 234.

107C. 8, 37, 12. The motive that prompted Justinian to act was to remove "magnam legum veterum obscuritatem, quac protrahendarum litium maximam occasioncm usque adhuc praebebat".

108Cf. Rogerius ("dies habetur pro interpellatione"); Accursius (". . . quia in mora est die

interpellante pro homine"): Dilcher, Leistungsstorungen, p. 48.

nvf W. Ogris, HRG, vol. I, col. 740 sq.; Van Ziji Stcyn. op. cit.. note 72, pp. 64 sqq.

112Cf. Joubert, Contract, p. 202; De Wet en Yeats, p. 143.

113Cf. supra, p. 796.

114Cf. e.g. Nicholas, FLC, pp. 233 sq. (who comments: "This rule is widely deplored, but well-settled"); but see also Zwcigert/Kotz, p. 217.

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performed within a certain time may damages be claimed without formally putting the debtor in delay.115

4. Consequences ofmora debitoris (ius commune)

What were (and what are) the effects ofmora debitoris? The medieval lawyers were presented with a specific problem by the Roman rule that interest could be charged in bonae fidei contracts. For how could this be reconciled with the canonical usura prohibition?116 Interest on account of mora, ran the argument usually presented to resolve the difficulty, was not to be regarded as genuine (illicit) usura, but as a (lawful) way of compensating the creditor for his damages: "hie usuras ut interesse peti" (Accursius) or ". . . pro interesse petatur" (Gofredus de Trano), and such a claim was not dishonest, "quia tale lucrum ex mutuo non speratur" (Cinus da Pistoia).117 Mora thus became one of the most important titles for awarding interest. The statutory or customary rates differed from town to town, from region to region. In the medieval upper Italian city states up to 20 % or even 30 % could be charged:118 in later centuries 5 % came to be widely accepted.119 "Moribus tamen hodiernis etiam in stricti juris judiciis ex mora usurae debentur quincunces", says Lauterbach,120 and he makes it clear that a distinction was no longer drawn between contracts bonae fidei and stricti juris. In modern German law every money debt bears interest during default at 4 %.121 Apart from that, as in the Roman law relating to incertum obligations, the creditor can claim compensation for damages122 and delivery of or restitution for emoluments.123 Furthermore, mora still has the effect of increasing the debtor's liability; he is responsible not only for negligence but also for impossibility of performance arising accidentally during the default.124

For centuries it has been controversial whether the debtor is to be held liable even if the damage would also have arisen in the case of

115 Art. 1146 code civil. llfi Supra, pp. 170 sqq.

117Cf. the references in Dilchcr, Leistimgsstorungen, pp. 151, 156, 155. Cinus alludes to the famous precept of "mutuum date nihil inde sperantes" of St. Luke, 6, 35. Cf. also Heymann, op. at., note 72, pp. 75 sqq.

118Dilcher, Leistunpstonw^en, pp. 152, 155.

119Cf. still Windscheid/Kipp, § 280. 1.

120Collegium theoretico-practicum. Lib. XXII, Tit. I, XVIII; cf. also e.g. Voet, Commentarius

ad Pandectas. Lib. XXII, Tit. I, XL

121§ 288 BGB.

122§ 286 BGB. The BGB draws a distinction between damages arising from the default (§ 286 I) and damages for non-performance (§ 286 II). This is a consequence of the fact

that—unlike in Roman law —condemnation is in the first place in forma specifica. Thus, the creditor normally has the right to demand specific performance and—in case of mora—damages arising from the default. Damages for non-performance (including damages arising from the default) can according to § 286 II BGB, be claimed if, owing to the debtor's default, specific performance is no longer of any interest to the creditor. Cf. also

§326 BGB for synallagmatic obligations.

123 § 292 BOB'.

124 § 287,2 BGB; Wacke, Festschrift Hubner, pp. 681 sqq.

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timeous performance.125 The BGB has settled this moot point in favour of the debtor.126 South African writers still refer to perpetuatio obligationis where they deal with the extension of the debtor's liability as a consequence of mora debitoris.127 So did many of the writers of the ius commune.128 Already by the time of Justinian, however, the debtor's obligation no longer had to be fictitiously perpetuated in order to preserve it as a basis of his liability. For even certum dare obligations were now adjudged according to the requirements of "aequitas", that is, as freely as the contracts bonae fidei under classical Roman law.129 In particular, liability was no longer strictly circumscribed by a procedural formula of the type: "Si paret . . . dare oportere, quanti ea res est, tantam pecuniam . . ."—with the result that the obligation automatically fell away when the object of the performance was destroyed. As in the case of bonae fidei transactions, the debtor could be liable for id quod interest if he had not complied with his contractual duties. The same, of course, applies today.

III. RESCISSION AS A REMEDY FOR BREACH OF CONTRACT

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.130 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

"3 Cf. Dilchcr, Leistungsstomngen, pp. 108 sqq.; Fachmacus, Controversiae iuris. Lib. VIII, Can. С and CI; Van Zijl Steyn, op. cit., note 72, pp. 90 sqq.; Windscheid/Kipp, § 280, 2.

'~л § 287 BGB in fine. The solution of the BGB is, however, less favourable to the debtor than, for instance, the one adopted in § 965 ABGB. The difference revolves around the question raised in Ulp. D. 30, 47, 6 in fine: if the creditor had received the object of the performance in time, would he have sold it and thus avoided its destruction? According to the ABGB, the creditor has to prove that he would indeed have sold it, according to the BGB, it is the debtor on whom it is incumbent to prove that the creditor would have kept it.

127 Van Zijl Steyn, op. cit., note 72, pp. 90 sqq.; De Wet en Yeats, p. 148; Joubert, Contract,

p.206.

12M Cf e.g. Struvc, Syntagma, Exerc. XXVII, Lib. XXII, Tit. I, LXX; Voet, Commentarius

ad Pandectas, Lib. XXII, Tit. I, XXVIII. 129 Kaser, RPr II, pp. 333 sq., 357.

1311 Cf. also <j 286 II BGB.

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