!!Экзамен зачет 2023 год / The Law of Obligations

remembered, were in any case not enforceable in forma specifica under the ius commune195 ("nemo potest praecise cogi ad factum").

(2)There is an exception in cases where the debtor is obliged to pay

money or to deliver fungible things: the debtor is responsible for his inability to deliver, even though no fault is attributable to him.196 This

reflects the old maxim "genus perire non potest" of the ius commune.197

(3)If the performance due by one party under a reciprocal contract becomes impossible because of circumstances for which neither he nor

the other party is responsible, he loses his right to demand counterperformance.198 This gives expression to what has been termed the "conditional synallagma":iyy obligation and counterobligation share the same fate; if one of them falls away, so does the other. Both obligations are interdependent and they should therefore not be looked at in isolation—the consequence of the fact that the one party has

promised to perform in order to receive the counterperformance ("do ut des").20U § 323 BGB contains the general risk rule developed during the

age of the law of reason and embodied, for the first time, in §§ 364 I 5 of the Prussian General Land Law.201 It is in conflict with the older ius

commune, which tended to place the risk of casus in some of the most important bilateral contracts on the creditor;2"2 thus, it is the purchaser who has to pay the purchase price, even though he does not receive the merx, and the customer who is bound to pay the remuneration agreed

upon, although the promised work has been destroyed. This was, of course, the result of the Roman periculum emptoris, locatoris, etc.203

(4)Where the performance becomes impossible because of a

circumstance for which the debtor is responsible, the creditor may demand compensation for non-performance;204 alternatively, if the

impossibility relates to a synallagmatic obligation, he may withdraw from the contract.205 The right of withdrawal from the contract is

1Уэ And under the code civil: art. 1142. Cf. further Harting, op. cit., note 43, p. 92. 19(1 § 279 BGB.

19 Gliick, vol. IV, pp. 386 sqq.; Dilcher, Leistitngsstomngen, pp. 277 sqq.; Wollschlager,

Umnoylichkeitstehre, p. 43.

198 § 323 BGB.

144 Benohr, Synatlagtna, p. 1.

2Ш On the exceptm non adimplcti contractus (§ 320 BGB) (another expression of the mutual interdependence of obligations arising under a reciprocal contract) cf. supra, pp. 801 sq.

2111 The historical development is traced by Wollschlager, UnmogHchkeitslehre, pp. 64 sqq., 106 sqq., 142 sq. and Joachim Ruckert, "Vom casus zur Unmoglichkeit und von der Sphare zum Synallagma", (1984) 6 ZNR 40 sqq. Ruckert emphasizes that both under the Prussian Land Law and under the BGB the crisp and plucky general rule is subject to many exceptions for specific contracts.

2<)~ Dilcher, Leistiwgsstormigen, pp. 191 sqq.; Wollschlagcr, Unmoglickkeitstehre, pp. 50 sq.;

Schemer, Riicktrittsrecht, pp. 37 sqq.; Ruckert, (1984) 6 ZNR 40 sqq. 2(13 Cf. supra, pp. 281 sqq., 370 sq., 403.

204§§ 280, 325 BGB.

205§ 325 BGB.

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essentially the same as in the case of mora debitoris.206 The emphasis on (supervening) impossibility is the influence of Mommsen/Windscheid. Particularly odd, or even eccentric, appears to be the fact that supervening impossibility and mora debitoris207 are the only two forms of breach of contract recognized by the BGB. Furthermore, a debtor is not only bound to perform at all and to perform at the right time; there are further obligations arising from the contract with which he can be expected to comply. Most importantly, his performance must not be deficient. Thus, the vendor of poisonous horsefodder should be liable for damages if the purchaser's horses die as a result of being exposed to such an unsuitable diet.208 So should the vendor of defective fuel which damages the engines in the purchaser's vehicles.209 Liability should also arise, for instance, where the damage was caused as a result of inadequate information or incorrect instructions supplied by the vendor of some piece of equipment.210 As early as 1902 (two years after the BGB had come into effect) Hermann Staub211 discovered that for these and similar cases the BGB contained a "giant gap". Concentrating solely on delay of performance and impossibility, the legislator had, apparently, forgotten to deal with what Staub termed "positive Vertragsverletzungen" (positive breach of contract; "positiewe wanprestasie" in the terminology of De Wet en Yeats).212 The courts immediately set about filling this gap and today "positive Vertragsverletzung" is generally recognized as a judge-made institution extra Iegem.213 As with the other forms of breach of contract, it entitles the creditor to claim damages or (under certain circumstances)214 to rescind the contract. As a matter of fact, however, the BGB did not contain the blatant defect that Staub claimed to have "discovered".215 In Mommsen's impossibility doctrine, cases of malperformance featured in the guise of partial impossibility as to the quality of the object of performance.216 If the vendor delivers horsefodder that is poisonous, he

206 Cf. supra, p. 802; for a comparative overview cf. Jurgen Basedow, Die Reform des deutschen Kaufrechts (1988), pp. 36 sqq.

207§§ 286, 326 BGB.

208RGZ 66, 289 sqq.

209BGH, 1968 Neue Jurisitsche Wochenschrift 2238.

210Cf. e.g. BGHZ 47, 312 (315 sq.).

211"Die positiven Vertragsverletzungen und ihre Rechtsfolgen", in: Festschrift for den 26.

Deutschen Juristentag (1902), pp. 29 sqq.

212At pp. 161 sqq.

213BGHZ 11, 80 (83 sqq.) and, for all details, Emmerich, op. cit., note 83, Vor § 275, nn. 95 sqq.

214Emmerich, op. cit., note 83, Vor § 275, nn. 135 sqq.

215On "legal discoveries" in this context, see Hans Dolle, "Juristische Entdeckungen", in:

Verhandlungen des 42. Deutschen Juristentags, vol. II (1959), pp. В1 sqq., В15sq.

216Mommsen, Unmoglichkeit, pp. 193 sqq.; cf. also Jury Himmelschein, "Erfullungszwang und Lehre von den positiven Vertragsverletzungen", (193?) 135 Archiv for die civilistische Praxis 255 sqq., 297 sqq.; Wollschlager, Unmogtichkeitsiehre, pp. 132 sqq. On

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has only partially complied with his contractual duties: he has made delivery, but what he has delivered is not suitable for use. The type of performance he was bound to render (delivery of horsefodder at the right time and of the right quality) has thus become impossible. The development of the doctrine of "positive Vertragsverletzung" therefore merely demonstrates a lack of sympathy and understanding for Mommsen's abstract conceptualism that still underlies the provisions of the BGB relating to breach of contract. Apart from that, however, it provides an example of the scope of judicial law-making, even under a codified system.

(5) Finally, it must be kept in mind that for some contracts the BGB provides a number of special rules and remedies dealing with the problem of defective performance. They take precedence over the general rules relating to breach of contract (lex specialis derogat legi generali). Particularly important are the rights of a customer under a contract for work and of a purchaser to demand annulment of the contract or reduction of the remuneration/purchase price.217 These remedies are obviously either based on or inspired by the aedilitian remedies of Roman law.

6. Breach of contract in German law

The German way of dealing with the problem of breach of contract, particularly the attempt to categorize the various forms of breach of contract, has not attracted much favourable comment.218 It is widely regarded today as one of the most unfortunate features of the German law of obligations. Breach of contract and ("extinctive") prescription have been earmarked as the two areas where fundamental reforms are necessary.219 It is not surprising that the draft proposals, commissioned by the Minister of Justice, abandon the distinction between impossibility, default and delay of performance and adopt, instead, a unitary

positive malperformance under the ius commune, see Harcing, op. cit., note 43, pp. 55 sqq., 65 sqq., 75 sqq. (natural law); cf. also infra, p. 1024 (liability under the lex Aquilia rather than the contract).

217 §§ 459, 462, 634 BGB. Under certain circumstances (if a promised quality in the thing sold is absent at the time of the purchase, if the vendor has fraudulently concealed a defect or if the defect in the work is caused by circumstances for which the contractor is responsible) the purchaser/customer may demand compensation for non-fulfilment in the place of cancellation or reduction: §§ 463, 635 BGB.

21H Cf., for example, Ernst Rabel, "Unmoglichkeit der Leistung", in: Aus tomischem und biirgerlichem Recht, Festschrift jiir Ernst I. Bekker, (1907), pp. 171 sqq.; Heinrich Stoll, Die Lehre von den Leistungsstonmgen (1936), pp. 1 sqq.; Wieacker, Privatrechtsgeschichte, p. 519;

Zweigert/Kotz, pp. 232 sqq.; Huber, op. cit., note 5, pp. 756 sqq.; Basedow, op. cit., note 206, pp. 35 sqq.; but see also Horst Heinrich Jakobs, Gesetzgebung im Leistimgsstdrungsrecht (1985), who embarks on a defence of the system underlying the rules of the BGB and docs not regard any reform legislation as necessary. For a criticism of Jakobs' point of view, see, however, Dieter Medicus, "Gesetzgebung und Jurisprudenz im Recht der Leistungsstorun- gen", (1986) 186 Archit* fur die civilistische Praxis 268 sqq.

219 Hans A. Engelhard (Minister of Justice), "Zu den Aufgaben einer Kommission fur die Uberarbeitung des Schuldrechts", 1984 Neue Juristische Wochenschrift 1201 sqq.

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concept of breach of contract.220 Mommsen's scheme, as endorsed by the BGB, strangely resembles the regime applied in Roman law to certum dare obligations. It is still the old idea of a perpetuatio obligationis in case of mora debitoris and of culpable supervening impossibility that lurks behind the scenes.221 In a way, therefore, German legal science is, once again, about to take the step from a scheme determined by a somewhat outdated conceptual rigour to a pattern of thinking moulded upon, and more suitable to, the traditions of the bonae fidei iudicia.

7. Breach of contract in English law

In modern discussions de lege ferenda it is, in this instance, the English common law that has for some time set the trend.222 Here we find a

reasonably streamlined set of rules dealing with all forms of breach of contract, including liability for defects in contracts of sale or contracts for work.223 Whenever one of the parties fails to perform his contractual duties, the other party has a claim for damages for breach of contract. If the failure of performance is substantial, the innocent party may, in addition, rescind the contract. Contrary to the tradition of the ius commune, the debtor's liability does not depend on fault.224 The reason is, of course, that the common law regards all contractual promises as guarantees:225

"[Wjhen [a| party by his own contract creates a duty or charge upon himself, he is bound to make it good, . . . notwithstanding any accident by inevitable necessity"; 22Ci

2211 Huber, op. cit., note 5, pp. 671 sqq., 699 sqq.

221 Rabel, Festschrift Bekker, pp. 185, 201 sq.; Harting, op. cit., note 43, pp. 128 sqq., 139 sqq.; cf. also Wollschlager, Unmoglichkeitslehre, pp. 146 sq.

~22 Particularly in the discussion leading up to the Uniform Law for International Sales of Goods as adopted in 1964 by the Hague Conference for the Unification of the Law of Sales, and to the United Nations Convention on Contracts for the International Sale of Goods adopted in 1980 at a conference in Vienna; on these two important milestones towards legal unification cf. e.g. Hans Dollc (ed.), Kommentar гит Einheitlichen Kaufrecht (1976); John O.

Honnold, Uniform Law of International Sales tinder the 1980 United Nations Convention (1982); on the trauaux preparatoires to the Uniform Law for International Sales of Goods, cf, for example, the articles by Ernst Rabel as collected in: Gesamtnelte Aufsatze, vol. Ill (1967), pp. 381 sqq.; for a comparative evaluation of the United Nations Convention, see j. Barrigan Marcantonio. "Unifying the Law of Impossibility", (1984} 8 Hastings International and Comparative LR 41 sqq.

223For an overview cf. Zweigert/Kotz, pp. 221 sqq.; cf. also their evaluation, pp. 232 sqq.

224But cf. Basedow, op. cit ., note 206, pp. 38 sqq., who points out that in actual practice

the differences between English law and continental law have to a large extent been levelled out. Essential for the debtor's liability even on the Continent is (judicial) determination of his range of duties under the contract (i.e. an objective criterion). Breach of such contractual duty, as a rule, implies fault. Thus it is up to the debtor to establish (and prove) that he was not at fault; cf. e.g. § 282 BGB.

225Cf. supra, pp. 776, 803.

226Paradine v. jane (1647) Alcyn 26 (dealing with a landlord's action to recover rent; the tenant was not excused from payment, even though he had been evicted from the land by a royalist army under the command of Prince Rupert). On this leading case and its reception, cf. e.g. Grant Gilmore, The Death of Contract (1974), pp. 44 sqq.

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if he had not wanted to be bound under those circumstances, he should have specifically excluded his liability. This does not mean, however, that without an express exemption clause the debtor's liability is unlimited. Determination of its scope is a matter of the proper interpretation of the contract. Or, according to art. 74 of the Uniform Law for International Sales of Goods: the debtor continues to be bound unless he is able to prove that the non-performance is attributable to circumstances which, according to the common intentions at the time of conclusion of the contract, he did not have to take into account, to avoid or to overcome. Thus, in the leading case of Taylor v. Caldwell,227 a contract concerning the hire of a music hall for the presentation of a series of concerts was held to contain an "implied condition" that

"the parties shall be excused in case . . . performance becomes impossible from the perishing of the thing (i.e. the music-hall] without default of the contractor".

The German lawyer would refer to supervening impossibility.22S The

227(1863) 3 В & S 826; on the development cf., apart from the standard English literature.

L.W. Murcott, "Oormag in die Engelsc en in die Suid-Afrikaanse Reg", (1942) 6 THRHR 169sqq.

228-pjie ]cssor Wou]d be released from his obligation according to § 275 I BGB, the lessee according to § 323 1 BGB. This is one of many examples which demonstrate that despite the

widely divergent theoretical starting points, the actual problems are often solved m very much the same way; cf. e.g. Zweigert/Kritz, pp. 22У sqq.. and also Marcantonio, (1984) 8

South African law. The systematic exposition of breach of contract in modern textbooks is so diverse that one can hardly believe that these books arc dealing with one and the same legal system. Christie, The Law of Contract in South Africa (1981), deals with mora and breach, Kerr, The Principles of the Law of Contract (3rd cd., 1982), subdivides his chapter on breach of contract into repudiation, anticipatory breach, ordinary breach and major and minor breach. Van Rensburg/Lotz/Van Rhijn, in: Joubert (ed.), The Law of South Africa, vol. 5 (1978), nn. 199 have negative malpcrformanee (mora crcditoris and debitoris), positive malperformance and anticipatory breach (repudiation and prevention of performance). l)e Wet en Yeats, as in many other cases, adopt more modern German (pandeetist) thinking patterns and distinguish between mora debitoris, impossibility (onmoontlikmaking van die prestasie) and positiewc wanprestasie. However, they add repudiation (repudiering) as a fourth category. The discussion by joubert. Contract, is along the same lines. The South African courts have not been unduly worried about the theoretical differences. Typical of their approach is the leading case on impossibility, Peters, Flamman and Co. v. Koksiad Municipality 1919 AD 427. In this case Soiomon ACJ recognizes that for the old authorities it is clear that if a person is prevented from performing his contract by vis maior or casus fortuitus, he is discharged from liability. Joseph Averanius (Interpretationes Iuris) is quoted for this proposition. The judge then remarks that "unfortunately" the rules of the civil law appear to have been ignored in several South African cases and that the courts have been guided entirely by the decisions of the English courts. More particularly, the rule of Paradinc v. Jane has been invoked (cf. e.g. Hay v. The Divisional Council of King William's Town 1 EDC 97 at 102). It is not consistent with the principles of the civil law. Even in English law, it has been considerably modified by later decisions. Solomon ACJ then proceeds to quote from Horlock v. Bcal [19161 1 AC 486 (HL) at 525, and F.A. Tamplin Steamship Co. Ltd. v. Anglo-Mexican Petroleum Products Co. Ltd. [1У16]2 AC 397 (HL) at 422 and comes to the conclusion: "It will be seen, therefore, that although the English law looks at the subject from a different point of view from ours, in the result the difference is not very great. And indeed, if this case had been tried in an English Court of Justice, I am disposed to think that the defendants would have been held to have been discharged from their obligations under the contract" (p. 437). Cf. further Hcrsman v. Shapiro & Co, 1926 TPD 367 at 371 sqq.;

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somewhat fictitious nature of the construction chosen in Taylor v. Caldwell becomes apparent when one reads what Blackburn J says at the outset of his opinion—namely, that "[t]he parties when framing [their] agreement evidently had not present to their minds the possibility of such a disaster".229 Only a few lines later, however, we see him express his confidence that "[the] implication tends to further the great object of making the legal construction such as to fulfil the intention of those who entered into the contract".23" The inconsistency is obvious.231 But somehow or other the desired legal result had to be connected to the intention of the parties and the most convenient, and fashionable, device that could be used in order to achieve that was the implied condition.

The basic inspiration came from Roman law, though, ironically, as in the case of the parallel rule of § 323 BGB, from the obligationes stricti iuris. For in Blackburn J's opinion we meet an old acquaintance. It is Pomp. D. 45, 1, 23 to which the judge refers for the proposition that a debtor corporis certi is freed from his obligation when there is no longer a corpus certum.232 As so often,233 incidentally, Pothier's Traite

Murcott, (1942) 6 THRHR 169 sqq., 190 sqq. (very solid) and W. A. Ramsden, Supervening Impossibility of Performance in the South African Law of Contract (1985) (the only monograph on the topic).

Repudiation (as a form of breach of contract in anticipando; in German: "ErfiUhtngsverweigemng") has been taken over from English law (leading case: Hochster v. De la Tour (1853) 2 El & Bl 678) and is today generally accepted as a special type of breach of contract (even by Roman-Dutch "purists" such as De Wet en Yeats); c(. e.g. P.M. Nienaber, "Enkele beskouinge oor kontrakbreuk in anticipando", (1963) 26 THRHR 19 sqq.; idem, Anticipatory Repudiation in English and South African Law of Contract, pp. 111 sqq.: "Roman-Dutch law did not know a form of breach of contract corresponding to the English breach by anticipatory repudiation. In South Africa the doctrine was superimposed on the forms of breach known to Roman-Dutch law. The courts acted on the English principle, apparently without realizing that an entirely new doctrine, unknown to Roman-Dutch law, thereby came to form part and parcel of South African law . . . and if even a twinge of doubt was experienced this was finally laid to rest in Demiill к. Atkins & Co. 1905 TS 282. . . . English authorities were quoted in abundance and so it hardly occasions surprise that not only the principle, but the underlying reasons for the principle as expressed in the leading English cases, were adopted." This passage was quoted with approval by Holmes JA in Crest Enterprises (Pty.) Ltd. v. RycklofBeieggings (Edms.) Bpk. 1972 (2) SA 863 (A) at 869D-E; for final confirmation of the recognition of the doctrine cf. also Novick v. Benjamin 1972 (2) SA 842 (A) at 853H858F. For recent trends, see Tuckers Land and Development Corporation (Pty.) Ltd. v. Hovis

1980 (1) SA 645 (A) at 650G-653A and David Carey Miller, (1980) 97 SAL] 531 sqq. In German law, the rules of positive malperformance are usually applied; cf. Emmerich, op. cit., note 83, Vor § 275, nn. 120 sqq.; but cf. also e.g. Klaus Friedrich, "Der Vertragsbruch", (1978) 178 Archiv fiir die civilistische Praxis 488, arguing for a separate institution. On historical and comparative aspects of the doctrine of anticipatory breach, cf. Francis Dawson, "Metaphors and Anticipatory Breach of Contract", (1981) 40 CLJ 83 sqq.; James C. Gulottajr., "Anticipatory Breach — A Comparative Analysis", (1975-76) 50 Tulane LR 927 sqq.

229At 833.

230At 834.

231"It is hard to sec how much further inconsistency is possible": A.W.B. Simpson,

"Innovation in Nineteenth Century Contract Law", (1975) 91 LQR 271.

232 At 834.

2J3 Cf. e.g. supra, pp. 336 sq., pp. 611 sq.

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des obligations234 provided the vital link for the transfer of the civilian doctrine into the fabric of the common law. Taylor v. Caldwell may be regarded as one of the roots of the modern English doctrine of frustration of contract, for the underlying idea of an "implied condition" soon came to be fused with that of a "frustration of adventure", as developed in a line of cases dealing with charterparties and their construction.235 By implying a condition that no event would occur that would defeat the object of the contract, the courts created an effective tool to bring about a just and fair solution, not only in cases of factual or legal impossibility but also where the foundation of the contract is affected by a supervening change of circumstances;236 it is thus the functional equivalent to the continental clausula rebus sic stantibus.237 "Viewed historically", writes Simpson,238 "[the doctrine of frustration] represents a curiously complex blend of common and civil law development, linked, inevitably, to the central doctrine of consensus by fiction." It was King Edward VII's indisposition on the day of his projected coronation that gave rise to a particularly interesting and famous set of cases.239

V.MORA CREDITORIS

1.Mora creditoris, mora debitoris and breach of contract

When we were discussing mora, reference was made to the definition contained in Voet's Commentarius ad Pandectas: "Mora est solutionis faciendae . . . frustratoria dilatio."240 It provided a convenient starting point for our examination of mora debitoris. We must now turn our attention to what, at that stage, we left out and merely represented by three dots: the words "vel accipiendae". If the debtor can upset the smooth exchange of performances, so can the creditor: the one by delaying his performance, the other by delaying acceptance of the performance offered by his debtor. Again, Voet's statement is typical of the view taken by the authors of the ius commune: they saw mora

234N. 660: "L'extinction de la chose due iteint la dette."

235Freeman v. Taylor (1831) 8 Bing 124; Jackson v. Union Marine Insurance Co. Ltd. ("Spirit of Dawn") (1874) LR 10 CP 125.

236Cf. e.g. Zweigert/Kotz, pp. 252 sqq.; Simpson, (1975) 91 LQR 271 sqq.

237Cf. supra, pp. 579 sqq.

238(1975) 91 LQR 273.

239Cf. e.g. Krell v. Henry [1903] 2 KB 740 (CA), dealing with the situation that the owner of a house en route of the coronation procession had let it to the defendant for the day. The procession was cancelled. It was held that the defendant was entitled to refuse to pay the rent under these circumstances. For a discussion of the coronation cases, see e.g. R.G. McElroy, Glanville Williams, "The Coronation Cases", (1940-41) 4 Modem LR 241 sqq.;

(1941-42) 5 Modem LR 1 sqq.

240 Cf. supra, p. 793 (note 69).

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creditoris as a counterpart, or twin image, of mora debitoris.241 Obviously, mora creditoris is practically much less important ("[moram] frequentius quidem debitor committit, rarius creditor"), but it does not, in essence, differ from mora debitoris. Both are, after all, two different types of mora and both are therefore based on fault (culpa). But where there is fault, there must also be the breach of a duty, for fault can be attributable only to someone who has done what he should not have done or who has failed to do what he should have done; hence the general assumption that the creditor is obliged to receive performance and that mora on his part constitutes a culpable breach of this obligation. "Mora est delictum culpabile in debito solvendo, vel credito recipiendo commissum"; or "Mora est culpa praetermittendi officii in solvendo, recipiendove debito, quae alteri damnosa est".242 As a result of this construction, the debtor had a claim for damages against the defaulting creditor.243

In a way, therefore, the position under the ius commune did not differ much from that under the English common law, where mora creditoris is unknown as a specific legal institution.244 The creditor is liable, in the same way as the debtor, for breach of contract; the debtor's remedies depend (as do those of the creditor) on whether the breach of contract is "substantial", "goes to the root of the contract" or is "material".245 It is interesting (but no longer surprising) to see that the creditor's liability is based, dogmatically, on the (judicial) implication of an appropriate term into the contract. According to Anson/Guest,246 the courts "are most ready to imply a condition that each party undertakes to do all that is necessary to secure performance of the contract"; and it is the infringement of this duty to co-operate that constitutes the creditor's breach of contract.

2. Mora creditoris in modern German law

The concept of mora creditoris underlying the provisions of the BGB is quite a different one. Unlike the creditor in a case of mora debitoris, the debtor in the event of mora creditoris does not have a right to sue for damages. The reason is that mora creditoris under the BGB is not based on fault but merely on the fact that the creditor does not accept

241Cf. e . g. Gliick, vol . 4, pp. 4 01 s qq. ; C arl Otto v on M a dai, D ie Le h re v on de r Mo ra ,

Dargestellt nach Gnmdsatzeii des Rh'miscUen Rechts (1837), pp. 227 sqq.; A.B. de Villiers, Mora creditoris as vortn van kotitrakbreuk (unpublished LLD thesis, Stellcnbosch, 1953), pp. 78 sqq., 186 sqq.

242Salicetus, Traaatus de mora and Hotomannus, Tractates de mora, both quoted by von

Madai, op. cit., note 241, p. 5.

241 This is still the position in South African law; c(. De Wet en Yeats, pp. 163 sqq., 174 sq.; Joubert, Contract, pp. 214 sqq., 220 sq.

244 For a comparative investigation, see Uwc Huffcr, Leistungsstomngen dutch Gtdubigerhandeht (1976), pp. 134 sqq.

245Cf. supra, pp. 803 sq.

24623rd cd., 1969, p. 491.

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performance offered to him in the proper manner.247 Fault as a requirement for mora creditoris, in turn, had lost its basis when it came to be recognized in the second half of the 19th century that the creditor is not obliged to receive performance but merely entitled to do so. The debtor, in other words, does not have a claim against the creditor to make him accept performance, even where it has been duly tendered. The institution of mora debitoris is merely designed to relieve in certain respects the position of a debtor who has done whatever one could reasonably expect him to do.248 This doctrine, again, goes back to Friedrich Mommsen;24'1 it was emphatically reasserted by Josef Kohler25" and impressed the fathers of the BGB.251 Of course, both Mommsen and the (earlier) authors of the ius commune claimed that their views were derived from, or at least reconcilable with, the sources of Roman law. Contemporary Romanist doctrine tends to side with Mommsen and to attribute the modern, objective construction of mora creditoris to the Roman lawyers.252 However, not all our sources do confirm such a general pattern; not even the solution adopted by the BGB, incidentally, is as straightforward as a reading of §§ 293 sqq. might suggest. With regard to one of the most important transactions, the contract of sale, the code deviates from the general principle: the purchaser is not bound only to pay the purchase price but also to take delivery of the object of the sale.253 Delay in accepting a res vendita is, therefore, first and foremost mora debitorisl

3. Requirements of mora creditoris in Roman law

Mora creditoris in Roman law appears to have had two requirements. On the one hand, performance had to be offered to the creditor at the right time, in the right place and in the proper manner. What that entailed depended on the circumstances of the individual case. As a general rule one can say that the debtor had to do whatever he was able to do without the co-operation of the creditor. Thus, where, according to the contract, performance had to be rendered at the creditor's premises, the debtor had to bring the goods, or the money, or whatever he owed, to that place and to offer it there. If, however, the creditor was required to collect the object of performance from the debtor's premises, a verbal offer was sufficient.254 Even that appears to have been dispensable, where a specific time had been fixed when the

247 § 293 BGB.

Э4М

VJ 298 sqq.

244 Die Lehre von der Mora tiebst Beitragen гиг Lehre van der culpa (1855), pp. 133 sqq.

2э0 "Annahmc und Annahmeverzug", (1879) 17 Jhjb 261 sqq.

251"Motive", in: Mugdan, vol. II, pp. 37 sqq.; cf. also Hiiffer, op. cit., note 244, pp. 14

sqq.

252Cf. Kaser, RPrl, pp. 517 sq.; Honsell/Mayer-Maly/Selb. pp. 247 sq.; Hausmamnger/

Selb, p. 37(1; but sec also Buckland/Stcin, p. 551; Thomas, TRL, pp. 254 sq.

253§ 433 II BGB.

254Pomp. D. 19, 1, 3, 4.

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creditor was supposed to come around to collect whatever was due to him.255 On the other hand, the failure of the debtor's attempt to render performance had to be attributable to the creditor. "Si per creditorem steterit quo minus accipiat" was the phrase used in this context by the Roman lawyers.256 This, as we have seen repeatedly,257 was a very broad and general expression, which did not in itself disclose under which circumstances a certain event was to be attributed to the creditor's sphere of risk. Marcellus258 refers to a "iusta causa" which might entitle the creditor to refuse payment from his debtor. But only a hitch in the performance itself could constitute such a iusta causa: the fact that it was not tendered at the right time, at the right place or in the right manner. That he had fallen sick or was prevented from receiving performance by force or by bad weather was no excuse, as we know from Ulp. D. 13, 5, 18 pr.: ". . . proinde si valetudine impeditus aut vi aut tempestate petitor non venit, ipsi nocere Pomponius scribit." Thus it is widely accepted today that a creditor in Roman law—unlike a debtor—could be in mora, irrespective of whether he had been at fault or not.259

4.Consequences of mora creditoris in Roman law

(a)Alleviation of liability

What were the consequences of mora creditoris? First of all, and most importantly, the debtor was not released from his obligation. But since he had done what he was expected to do and since the fact that he had not been able to discharge his obligation was attributable to the creditor, he no longer had to carry the risk of accidental destruction. Moreover, just as his liability was augmented in a case of mora debitoris, it was relaxed as a consequence of mora creditoris: whatever he might have been responsible for previously, he was now liable only

for dolus.26" Thus, where he owed a specific thing and where this thing perished due to anything but his own dolus, he became free.261 If

fungibles or money were owed, the solution was slightly different; for even if (for instance) the specific slave that had been offered to the creditor subsequently died, the debtor was, strictly speaking, still both bound and able to deliver another one. The jurists helped by granting an exceptio doli:

"Si cui homo Icgatus Russet ct per legatarium stetissct, quo minus Stichum, cum heres tradere volebat, acciperct, mortuo Sticho exceptio doli mali heredi proderit."2('2

255Paul. D. 18, 6, 5.

256Afr. D. 17, 1, 37; Cels. D. 19, 1, 38, 1; Ulp. D. 46, 3, 9, 1.

257Cf. supra, pp. 105 sq., 385, 730, 785 sqq.

25H D. 46, 3, 72 pr.

259Cf. supra, note 252.

260Pomp. D. 18, 6, 18; Paul. D. 18, 6, 5; Pomp. D. 24, 3, 9.

261Sab. /lav. D. 45, 1, 105; Marc. D. 46, 3, 72 pr.

262Iul. D. 30, 84, 3; cf. also Marc. D. 46, 3, 72 pr.

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