On-line version ISSN 1727-3781
PER vol.15 n.5 Potchefstroom Dec. 2012
BIuris, LLB (Unisa), LLD (UP). Professor in Private Law and Director of the Centre for Intellectual Property Law, University of Pretoria. Email: email@example.com
Parties generally enter into contractual relations with the sincere intention to fulfil all the obligations created in terms of their contract. However, for various reasons, parties sometimes do not comply with the terms of their contract. Where a party fails to perform at the agreed date and time or after receiving a demand from the creditor, the debtor commits breach of contract in the form of mora debitoris.1 The question then arises whether or not a debtor would also commit breach in the form of mora debitoris if the delay in performance cannot be attributed to wilful disregard of the contract or a negligent failure to perform on time. This was the question which the court had to determine in Scoin Trading (Pty) Ltd v Bernstein.2
The case of Scoin Trading (Pty) Ltd v Bernstein3 dealt with a claim for payment of mora interest. The respondent was the executor of a deceased estate. The deceased was a coin collector and on various occasions had bought various valuable coins from the appellant. During August 2007 the appellant obtained a rare double-stamped one Pound gold coin from the Zuid-Afrikaansche Republiek and offered it for sale to the deceased. The deceased agreed to purchase the coin from the appellant for a price of R 1.95 million. The deceased paid a deposit of R 200,000 and agreed to pay the balance of the purchase price by the end of that year.
Unfortunately, the deceased passed away in November 2007 before the balance could be paid. The respondent was appointed executor of his estate and he acknowledged liability for payment of the balance of the purchase price but denied liability for interest. As a result, the appellant instituted action in the KwaZulu-Natal High Court for payment of the balance of the purchase price plus interest at the prescribed rate of 15.5% per annum.
The respondent argued that the deceased was not at fault in failing to pay the balance due to his untimely demise and therefore was not in mora and could not be liable for mora interest. Secondly, the respondent argued that the passing away of the deceased rendered performance impossible.
The KwaZulu-Natal High Court granted judgment for the capital sum, but dismissed the claim for interest. The court held that to be in mora, failure to perform had to be due to fault on the part of the debtor. Since the deceased had no fault in the failure to perform, there could be no mora and consequently no mora interest.
The court rejected the second argument and indicated that unless the contract expressly stipulated otherwise or the transaction involved a delectus personae, the death of a debtor did not amount to impossibility as the duty devolved on the estate of the deceased.
The matter then went on appeal to the Supreme Court of Appeal to determine if the estate was liable to pay interest on the balance of the purchase price. In a unanimous judgment, Pillay AJA indicated that mora interest is a form of contractual damages and does not depend on fault. To claim mora interest, a creditor must only prove that a debtor is in mora in the sense that payment was not made at the specified time. It is not necessary to prove any fault on the part of the debtor.
This judgment seems to fly in the face of conventional wisdom. LAWSA4 explains that
[m]ora debitoris is culpable failure on the part of a debtor to perform timeously in a case where performance still remains possible in spite of such failure.
Literature on the law of contract in South Africa have over the years tended to hold that fault is indeed an element of mora debitoris.5 In one of the first textbooks on the law of contract in South Africa, Wessels6 explains that
[b]efore there can be mora (1) there must be a valid and enforceable claim; (2) the debtor must have failed to perform at the time when he should have done so; and (3) the failure or delay must have been due to the culpa of the debtor ...
[t]he default must be due to the fault (culpa) of the debtor. The law readily accepts that there can be no mora debitoris when the default of the debtor is due to the fault of the creditor. Irrespective of whether the creditor is in mora creditors or not, the debtor is also excused because there is no fault on his part. We can therefore conclude that fault is indeed a requirement for mora debitoris. ... [P]ractice does not require the creditor to plead fault on the part of the debtor, nor to advance proof of fault specifically, this is so because mere delay leads to the inference of fault. The debtor should be allowed to put any absence of fault on his part in issue. He will be excused if there is no fault unless he undertook the risk of the particular cause which delayed performance upon himself ...
De Wet and Van Wyk9 echoe this view and state that the delay must be due to fault on the part of the debtor or someone for whose conduct the debtor is liable. Van Jaarsveld et al10 agree and mention that while fault is an element of mora debitoris, the creditor does not have to prove that the delay is due to the fault of the debtor. However, the debtor may raise absence of fault as a defence against a claim based on mora debitoris.
Zimmermann and Visser11 explain that
mora debitor's is defined as culpable delay on the part of the debtor in performing an obligation that is due and enforceable, and that remains capable of performance in spite of such delay.
Zimmermann, Visser and Reid12 also note that
in respect of many, if not most forms of breach the absence of fault on the part of the alleged contract-breaker will usually afford a good defence.
In a footnote, they add that
[t]his seems to be so in regard to both forms of mora, to prevention of performance and, to a large extent, also to positive malperformance; the position in respect of repudiation is more complex.
Hutchinson and Pretorius13 define mora debitoris
the culpable failure of the debtor to make timeous performance of a positive obligation that is due and enforceable and still capable of performance in spite of such failure.
They add14 that
[t]he delay must be due to the fault of the debtor or of persons for whom he or she is responsible. ... The onus is apparently on the debtor to show that the delay was not due to his or her fault.
Christie15 indicates that "it is not necessary to show that ... default is willful or negligent". However, it is not clear whether Christie completely disregards fault as an element of mora debitoris, or whether he merely reiterates the view that the creditor does not have to prove that the delay is due to the fault of the debtor while the debtor could still raise absence of fault as a defence.
Kerr16 indicates in this regard that
failure to perform at the time when, or during the period within which, performance is due is, in the absence of a lawful excuse, a breach of contract because it is failure to do what one has contracted to do
and defines17 mora debitoris as
delay in performance, without lawful excuse, by the debtor; and the "debtor" is the party on whom the primary obligation to perform rests.
He does not explain what exactly would constitute a lawful excuse. Kerr does mention in a footnote, though, that "the point of view that fault may be a requirement is not supported".18 However, this statement is made in respect of mora creditoris and not mora debitoris. Kerr19 seems to view mora as a "breach of the time factor for performance"20 and apparently views mora debitoris and mora creditoris as manifestations of the same form of breach.21 This may mean that Kerr does not view fault as an element of mora debitoris. He certainly never mentions fault in any form as an element of mora debitoris.
If the performance amounts to payment of a liquidated debt, interest is payable from the date on which the letter of demand is received or the date on which summons is served.22
The judgement in Scoin Trading (Pty) Ltd v Bernstein23 seems to be at odds with most of the literature on the law of contract, and there is apparently also a difference of opinion relating to the requirement of fault in the case of mora debitoris among some leading authors. Consequently, one should first of all consider the historical sources from which our law pertaining to mora debitoris is derived to determine if there is any historical foundation for the view that fault is an element of mora debitoris.
5 Historical development
Poste and Whittuck24 indicate that in Roman law
[m]ora ... does not arise before one of two events; either the expiration of the term prefixed for payment, or the debtor's refusal to comply with the creditor's demand..25
Kaser26 elaborates on this and explains that
[m]ora debitoris required a debt in respect of a performance which was actionable and due as well as still possible and which the debtor had delayed owing to circumstances under his control ... This was understood to mean groundless delay in strict certum debts ... and intentional non-performance (dolo malo) in other obligations.
He seems to suggest that fault was not required for instances of non-performance where the quality, quantity and kind of performance was specifically stipulated, but fault in the form of dolus or intent was indeed required for instances of nonperformance where the quality, quantity and kind of performance was not specifically stipulated. Kaser27 bases this assertion on a passage of Julianus cited in the Digest of Justinian.28 In the particular passage, Julianus indicated that whosoever, without fraudulent intent, went to trial was not regarded as being in mora29 if performance was delayed as a result. But Julianus was clearly referring to civil proceedings and when he referred to "fraudulent intent" he was referring to the bona fides of a party instituting or defending a claim, rather than the culpability of the debtor at the time of default. In this regard Poste and Whittuck30 explain that
[a] further condition of Mora is the absence of all doubt and dispute, at least of all dispute that is not frivolous and vexatious, as to the existence and amount of the debt. Qui sine dolo malo ad judicem provocat non videtur moram facere, Dig. 50, 17, 63. 'An honest appeal to a judge is not deemed a mode of Delay.'
Kaser's31 reference to "intentional non-performance" is therefore questionable.
Van Zyl32 similarly indicates that a debtor was generally judged to have committed mora debitoris in Roman law only if he wilfully delayed performance. He cites two passages33 from the Digest of Justinian in support of this assertion. However, in the one instance34 the passage indicates that one cannot be held in mora if there is no demand,35 confirming the rule that the creditor had to demand performance if the date for performance was not stipulated. The other passage36 is completely unrelated to breach of contract and deals with the freeing of slaves.37 Certainly, neither passage supports the contention that only wilful delay of performance constituted mora debitoris in Roman law. Elsewhere, Van Zyl38 reiterates the view that fault was an element of mora debitoris in Roman law. However, the principal citation39 offered40 in support of this view does not refer to fault in the sense of intent (dolus) or negligence (culpa) at all.41 The supplementary references42 which Van Zyl cites43 deal with instances of supervening impossibility,44 the perpetuation of an obligation45 and the curing of mora debitoris by subsequently tendering performance.46 Again, the cited passages do not provide any support for the contention that fault was an element of mora debitoris in Roman law.
Buckland47 indicates that failure to discharge a legal obligation had to be wilful to constitute mora and cites a passage of Pomponius48 in this regard. In the passage, Pomponius indicates that a debtor who is prevented from delivering performance when the object of performance is lost due to some wilful act by the debtor shall bear the loss.49 This is clearly a reference to another form of breach - rendering performance impossible - and not to mora debitoris, so that Buckland's conclusion with regard to fault as an element of mora debitoris in Roman law is invalid.50
Interestingly, Kaser51 explains that in the case of mora creditoris
the failure of performance had to be due to the creditor's conduct ... ; but he was in default, even if he was innocently unable to accept performance or to collect the object of the performance.
Since both mora debitoris and mora creditoris relate to delay of performance and both constitute negative malperformance, it would have been strange indeed if the creditor was held to adhere strictly to the contract, while the debtor was liable only for intentional breach.
Clearly, the current views that fault (and more particularly intent or dolus) was an element of mora debitoris in Roman law, are derived from at most tenuous sources and cannot be sustained. But what did the Roman jurists themselves have to say about the matter?
It was an accepted principle of Roman law that a debtor was considered to be in mora from the very moment when he delayed payment, and this rule applied in respect of all bona fide contracts.52 Paul53 explained that a debtor was in mora if he did not deliver performance to the creditor or to someone directed to receive performance on behalf of the creditor. Ulpian54 indicated that an action could be instituted as soon as the promisor was in default, as the time fixed for performance of the obligation had elapsed. Marcianus55 stated that interest became due through mora and Ulpian added56 that interest was calculated from the date of default.57 None of them noted any further requirements, such as fault on the part of the debtor, that had to be satisfied before a debtor would be in mora and therefore liable for mora interest.58
In fact, there is some indication that fault was not an element of mora debitoris in Roman law. Proculus59 explained that where it was stipulated that a penalty would apply if the debtor did not perform by a specified date, the debtor who failed to perform by that date would be in mora and therefore liable for payment of the penalty, even if it was clear that the work could not be completed on time and even if the stipulator allowed an extension of the time for performance. The mere fact that the debtor failed to perform by the stipulated date constituted mora.
Ulpian60 warned, though, that not every delay in performance amounted to mora. Where a debtor required some friends or his sureties to be present at the time when the debt was paid, the debtor was not in mora if payment was postponed as a result. The presence of the friends or sureties was probably required to witness the payment and may have fulfilled a function similar to the function of a receipt in modern commerce.61 If the debtor intended to raise some lawful exception, any delay occasioned similarly did not amount to mora.62 If the creditor caused the delay the debtor was not liable for being in mora.63 Pomponius64 suggested that mora occurred only if the debtor was not prevented by hardship from delivering that which he had always been able to deliver. Ulpian65 shared this view and indicated that a debtor who was suddenly compelled to be absent on public business was not held to be in mora. The same applied where the debtor was held captive by the enemy.66 Scaevola67 added that a debtor was not in mora where the creditor waived his claim. Papinianus68 also referred to the case where there was no-one to whom the money could be paid after the death of the creditor, so that the debtor was not in mora during that time. In the case of at least some of the excuses dealt with by the various Roman jurists, such as the raising of an exception or the calling of witnesses or sureties, the debtor would intentionally delay performance. As a result, these excuses cannot be said to exclude fault, but rather seem to amount to grounds of justification that would exclude the wrongfulness of the delay.
What becomes apparent if one reads through the various Roman texts dealing with mora debitoris is that none of the Roman jurists explicitly mentioned fault as an element of mora,69 but there is some indication that fault was not required.70 Because of this it can be concluded that mora in Roman law was not a culpable default in delivering performance, but rather a wrongful default.
The Roman law principles relating to mora debitoris were received into Roman-Dutch law. Voet71 discussed mora at some length and defined72 it as the wanton delay in delivering or accepting performance which is mostly committed by the debtor, but sometimes also by the creditor. Mora ex re occurs if there is delay where the date for performance is stipulated,73 while mora ex persona occurs where a demand has been made and the debtor does not perform at the proper place and time.74
There is no indication that Voet viewed fault on the part of the defaulting party as an element of mora. De Groot75 also failed to consider fault and indicated that mere default rendered the debtor liable. Similarly, Pothier76 did not mention fault when he indicated that an improper delay in performance would render the debtor answerable to the creditor and liable for interest and damages.77 However, Pothier did state78 that a debtor would be liable for consequential damages in the case of wilful default, but generally not otherwise.
Voet79 indicated that not every delay of performance amounted to mora as some instances of delay could be excused. In this regard Voet essentially reiterated the Roman law along the same lines as those set out by the Roman jurists. He also indicated that delay could be excused where a supervening event (casus interveniens) made timely performance extremely difficult, provided that the difficulty was not attributable to the negligence of the debtor or was not already present at the time when the contract was concluded.80 Pothier also indicated that where a debtor was prevented from delivering performance through casus fortuitus or force majeure, he would not be liable for the delay,81 but the debtor was obliged to inform the creditor of the circumstances which prevented performance.82
As was the case under Roman law, it seems that Roman-Dutch law also viewed mora as a wrongful default rather than a culpable default, so that fault was not an element of mora.
At the same time the English Common law of contract was also developing its own rules relating to breach of contract and default in performance. In Paradine v Jane83the King's Bench established the principle of absolute liability in the English law of contract.84 The plaintiff owned land which he rented to the defendant. During the English Civil War, Royalist forces took possession of the land and held it for three years until the Royalist forces collapsed in 1646. The plaintiff sued the defendant for breach of contract and payment of rent that was three years in arrears. The court
held that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.
As a result, the defendant remained liable for the rent.
This principle of absolute liability was observed by English courts until the second half of the nineteenth century when the doctrine of impossibility was introduced. In Taylor v Caldwell85 the respondents owned the Surrey Gardens and Music Hall, which they rented out to the plaintiffs on several dates commencing on 17 June 1861. On 11 June 1861 a fire reduced the music hall to ashes and the plaintiffs sued the defendants for failing to provide the music hall as stipulated in the contract. The Queen's Bench held per Blackburn J that when the existence of a particular thing, such as the music hall, is essential to a contract and the thing is destroyed through no fault of either party, the parties are released from their obligations in terms of the contract.
The various historical sources of the various legal systems which shaped our modern South African law, and in particular the law of contract and our law relating to breach of contract, therefore do not lend support to the contention that fault is an element of mora debitoris.
6 Comparative analysis
If there is no solid historical foundation for the contention that fault is an element of mora debitoris, how did the authors of the various textbooks on the law of contract in South Africa come to include it in their respective works? Perhaps the principle was derived from a similar rule in some foreign law relating to breach of contract? Some guidance can then be provided by considering the laws relating to breach of contract in other jurisdictions, which could have influenced our modern law relating to mora debitoris.
Scots law in respect of negative malperformance is essentially based on Roman law and a debtor is in mora if the debtor wrongfully withholds performance.86 In Persimmon Homes Ltd v Bellway Homes Ltd87 Lord Drummond Young explained88 that
if a party to a contract is unable to perform his obligations, the reason for that failure is irrelevant. In particular, it is immaterial that he is unable to perform because he cannot obtain requisite funds ... Thus if a party who has undertaken to sell an area of land is unable to obtain the land, the reason for the inability is irrelevant; there is still an inability to comply with the ultimatum notice. This can be regarded as an example of the fundamental principle that contractual obligations normally involve strict liability.
In Scots law, interest on a contractual debt generally begins to run only once a judicial demand is made, and interest is calculated from the date of citation to the date of payment.89
Although the English law of contract and breach of contract is not derived from Roman law, contractual obligations in English law also generally impose a strict duty on the debtor to perform.90 This, in turn, means that breach of contract is based on strict liability and fault is not an element of breach of contract in English law.91
A further implication of this principle of strict liability is that a claim for damages arising from breach of contract cannot at common law be apportioned on the basis of contributory negligence. Since fault is not an element of breach, contributory fault is irrelevant.92
The Restatement (Second) of the Law of Contracts in the United States provides in §235 (2) that any non-performance, when performance under a contract is due, is a breach.93 The Restatement contains no provision which would suggest that fault is an element of breach. But if there is an uncured material failure by the other party to render performance which was due at an earlier time, the debtor may be excused for withholding performance.94 The parties will be released from performance in the event of supervening impracticability where subsequent events, without the fault of the debtor, render the performance impracticable.95 The same applies where supervening events frustrate the purpose of the contract, unless the parties agreed otherwise.96
Article 6:81 of the new Dutch Burgelijk Wetboek provides that the debtor is in default during the time that performance remains undelivered after it has become due, unless the delay is not attributable to the debtor. Delay in performance is not attributable to the debtor if the debtor is not at fault, nor by law, juristic act or trade practice liable for the delay.97 At first glance, breach of contract in Dutch law is then based on fault in terms of this provision. But since a contract is a juristic act, a debtor liable to perform an obligation in terms of a contract is generally in terms of that contract liable for any delay in the performance.98 De Jong99 indicates that the juristic act from which the obligation arises is decisive in determining whether or not the debtor should be liable for the delay, even though it may not be attributable to the fault of the debtor.100 Delay in performance of a contractual obligation is therefore excused under article 6:75 only if the debtor is impeded through force majeure from performing.101 The onus is then on the debtor to prove force majeure or other circumstances which would excuse the delay in performance.102
German law on breach of contract is somewhat different and more complex as it is based on the Verschuldensprinzip or fault principle.103 Article 286(1) of the Bürgerliches Gesetzbuch (BGB) provides for Verzug or default if a debtor (Schuldner) fails to perform after receiving a notice from the creditor (Gläubiger) that performance is due104 (or a specific time for performance has been specified and the debtor fails to perform on time).105 Article 286(4) of the BGB, however, provides that the debtor is not in default for as long as default is the result of circumstances for which the debtor is not responsible. Some of the circumstances for which the debtor is not responsible can be derived from article 276 of the BGB. Article 276 provides in general that a debtor is responsible for intention and negligence, the implication being that the debtor is generally not liable in the absence of intention or negligence.106 But since article 286(4), read with article 276 of the BGB, constitutes an exception to the rule relating to liability on the grounds of Verzug set out in article
286(1) of the BGB, the party who relies on the exception must prove that exception. The burden of proof is therefore reversed and the debtor bears the onus to prove absence of fault - it is not necessary for the creditor to prove fault on the part of the defaulting debtor.107 In addition, article 323 of the BGB provides that, in the case of a reciprocal contract, a creditor may rescind the contract if the debtor does not perform in accordance with the contract and fails to perform after an additional period for performance has been specified. Article 323(6) excludes rescission only if the creditor is solely or predominantly responsible for the circumstances which would allow for rescission, or if the circumstance for which the debtor is not responsible occurs at a time when the creditor has defaulted in acceptance of the performance. The implication, as Lorenz108 explains, is that "fault is no prerequisite for terminating a contract if the debtor fails to comply with a duty incumbent upon him under the contract".109 As a result, the German approach is not a strictly fault-based approach and lies halfway between fault liability and strict liability.110
Clearly then, it is highly unlikely that the view in terms of which, in the South African law of contract, mora debitoris is the culpable delay of performance by the debtor, is derived from any other major legal system.
7 South African law
In view of the historical development and comparative analysis set out above, I now return to the various textbooks on the South African law of contract that identify fault as an element of mora debitoris. LAWSA111 does not refer to any authority to substantiate the view that fault is an element of mora debitoris, and that impairs its credibility in this regard.
Wessels112 and De Wet and Van Wyk113 base their assertion that fault is an element of mora debitoris on the reference that Steyn114 makes to the requirement of culpa.115 However, they seem to have overlooked or ignored Steyn's116 explanation of what he means with the word "culpa". Steyn117 indicates that the debtor can avoid liability based on mora debitoris if the debtor can raise an excusatio a mora. One such excusatio arises if the debtor could or should not have been aware of the obligation to perform, as well as the time for and nature of the performance.118 Another excusatio would be supervening impossibility.119 In other words, Steyn120 thinks of culpa not in the strict sense of "negligence" but rather in the broader sense of "blameworthiness". As a result, reliance on Steyn121 for the proposition that fault is an element of mora debitoris is based on a misinterpretation of what Steyn122 is actually stating.123
De Wet and Van Wyk124 further refer to some case law in support of the view that fault is an element of mora debitoris. However, all of the cases125 to which they refer deal with situations where the creditor was responsible for the delay. Since the respective debtors were not the ones delaying performance, there could be no mora debitoris. This means that De Wet and Van Wyk126 are incorrectly equating wrongful conduct on the part of the creditor with culpability or the lack thereof on the part of the debtor.
Van Jaarsveld et al127 also cite some of the cases128 on which De Wet and Van Wyk rely129 and therefore also err by confusing the issues of wrongful conduct by the creditor with the culpability of the debtor. In addition, Van Jaarsveld et al130 state that the courts have been inconsistent in their approach relating to fault as an element of mora debitoris. Of the cases they cite, one131 deals with a contractual term which made delivery subject to "contingencies, unavoidable or beyond our control" so that the question was not one of fault, but rather if delay caused due to war fell within the scope of the clause concerned. Another132 involved a claim which the plaintiff failed to prove so that there was also no payment due in respect of which the defendant could be in mora debitoris. As a result, the issue of fault did not even arise. However, the third case133 which they cite is interesting and is worth further elaboration. In Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co134 Viljoen J explained135 that
[t]he plaintiff relied on a term of the agreement in which a date for performance had been fixed, and it would have been sufficient to allege that the defendant had not performed before or on that day, and that the plaintiff suffered damages as a result. In expressing this view I have not lost sight of the statement by Wessels, Law of Contract, 2nd ed., para. 2858, that, before there can be mora, the failure or delay must have been due to the culpa of the debtor, but Steyn, Mora Debitoris (to whom Wessels refers) makes it clear at p. 42 what type of culpa he postulates, namely, that the debtor must or should have been aware of his obligation to perform timeously and of the nature of the performance. ... Apart from the so-called excusatio a mora that he did not know and could not know the nature of his duty or obligation, the defence of impossibility of performance would always be open to a debtor, but the creditor need not allege or prove, in a case such as the present where a date for performance had been fixed, that the debtor was wilful or negligent in not performing timeously.
This is the only case to which Van Jaarsveld et al136 refer, which deals expressly with the issue of fault as an element of mora debitoris. The court highlights the incorrect interpretation of Steyn,137 as I explain above, and concludes that fault is not an element of mora debitoris. The last case which Van Jaarsveld et al138 cite deals with the effect of temporary supervening impossibility and also does not relate to fault. Zimmermann and Visser139 base their view that fault is an element of mora debitoris on the case of Victoria Falls and Transvaal Power Company Co Ltd v Consolidated Langlaagte Mines Ltd,140 where Innes CJ explained141 that
generally, the liability of a debtor for interest under the civil law depended (apart from the agreement) upon whether he was in mora. Mora is a wrongful default in making (or accepting) payment or delivery.
This case seems to indicate the exact opposite of what is contained in the main body of the text. In the other case which they cite,142 Solomon AR explained143 that a debtor had a duty to perform and "on failure to do so he places himself in mora". No mention is made of fault as an element of mora debitoris.
Still, in Landau v City Auction Mart144 Watermeyer JA defined145 mora debitoris as "culpable delay in delivery". However, firstly, this case dealt with a refusal to perform, rather than a mere delay, so that any discussion of mora debitoris is merely obiter. Secondly, the defendant in effect sought to raise the exceptio non adimpleti contractus by submitting that his duty to deliver the merx was subject to the prior payment of certain charges by the plaintiff.146 As such, the use of the expression "culpable delay" may have been misplaced, as the question was not the fault of the defendant but the lawfulness of his refusal to perform.
There seem to be no clear precedents in South Africa which postulate fault as an element of mora debitoris, but there is a whole range of cases in which the courts address mora debitoris without referring to culpability or fault.147 Much of the confusion relates to a misinterpretation of the reference which Steyn148 makes to the requirement of culpa, to the effect that Steyn's explanation of what culpa entails is overlooked. Furthermore, the authorities which the various textbooks cite in support of the contention that fault is an element of mora debitoris invariably fall into the categories of unliquidated claims, cases were the creditor is the one causing the delay, cases where the date for performance was not determined and interpellation was required, or cases of vis major or casus fortuitus. These cases clearly do not deal with an absence of fault, but rather with the lawfulness of the delay.
In so far as existing literature suggests that fault is an element of mora debitoris, it is clearly wrong. No clear support for such a requirement can be found in Roman law or Roman-Dutch law and there is no clear precedent in South Africa which establishes that fault is indeed an element of mora debitoris. Furthermore, the principle that contracts impose strict liability to deliver performance is in conformity with the position in many other legal systems.
In final analysis, mora debitoris can be defined as the wrongful delay by the debtor of performance which is due and enforceable.149 A debtor who is in default can avoid liability based on mora debitoris on the basis of certain grounds that would exclude unlawfulness. These include situations where the creditor is responsible for the delay. They also include instances where the debtor does not and cannot know that a particular debt is due, what the nature and extent of the debt is, or when the debt is due. They also include compelling circumstances such as vis major or casus fortuitous. Lastly, if a debtor can raise a valid exception against a claim for delivery of performance, that could also have the effect that the delay would not amount to mora debitoris.
Brahn OK and Reehuis WHM Zwaartepunten van het Vermogensrecht (Kluwer Law Alpen aan de Rijn 2007) [ Links ]
Buckland WW A Manual of Roman Law (Cambridge University Press Cambridge 1928) [ Links ]
Christie RH The Law of Contract in South Africa (LexisNexis Durban 2011) [ Links ]
De Jong GT Niet-nakoming van Verbintenissen (Kluwer Law Alpen aan de Rijn 2006) [ Links ]
De Wet JC and Van Wyk AH Die Suid-Afrikaanse Kontraktereg en Handelsreg 5th ed (Butterworths Durban 1992) [ Links ]
Draetta U "Force majeure clauses in international trade practice" 1996 Int Business LJ 547-559 [ Links ]
Hartkamp AS Compendium Vermogensrecht voor de Rechtspraktijk (Kluwer Law Alpen aan de Rijn 2005) [ Links ]
Hartkamp AS, Tillema MMM and Ter Heide AEB Contract Law in the Netherlands (Kluwer Law Alpen aan de Rijn 2011) [ Links ]
Hutchinson D and Pretorius CJ (eds) The Law of Contract in South Africa (Oxford University Press Cape Town 2009) [ Links ]
Joubert DJ General Principles of the Law of Contract (Juta Cape Town 1987) [ Links ]
Joubert WA and Faris JA (eds) The Law of South Africa Volume 5(1) (Butterworths Durban 2000) [ Links ]
Kaser M and Dannenbring R Roman Private Law (Unisa Pretoria 1968) [ Links ]
Kerr AJ The Principles of the Law of Contract (LexisNexis Durban 2002) [ Links ]
Lorenz W "Reform of the German law of breach of contract" 1997 Edinburgh LR 317-344 [ Links ]
Lubbe GF and Van der Merwe S "Apportionment of Loss in Contractual Claims for Damages at Common Law" 1999 Stell LR 141-157 [ Links ]
Nieuwenhuis JH et al Vermogensrecht (Kluwer Law Alpen aan de Rijn 2009) [ Links ]
Poste E and Whittuck EA Institutes of Roman Law by Gaius with a Translation and Commentary (Clarendon Press Oxford 1904) [ Links ]
Schwartze R Das Recht der Leistungsstörungen (De Gruyter Berlin 2008) [ Links ]
Steyn IvZ Mora Debitoris volgens die Hedendaagse Romeins-Hollandse Reg (LLD-thesis Stellenbosch 1929) [ Links ]
Thomas JAC Textbook of Roman Law (Juta Cape Town 1981) [ Links ]
Van der Merwe CG and Du Plessis JE Introduction to the Law of South Africa (Kluwer Law The Hague 2004) [ Links ]
Van der Merwe S et al Contract: General Principles (Juta Cape Town 2012) [ Links ]
Van Jaarsveld SR, Boraine A and Oosthuizen MJ Suid-Afrikaanse Handelsreg 3rd ed (Lex Patria Johannesburg 1988) [ Links ]
Van Zyl DH Geskiedenis en Beginsels van die Romeinse Privaatreg (Butterworths Durban 1977) [ Links ]
Wessels JW The Law of Contract in South Africa 2nd ed (Butterworths Durban 1951) [ Links ]
Zimmermann R "Remedies for Non-performance: The Revised German Law of Obligations, Viewed Against the Background of the Principles of European Contract Law" 2002 Edinburgh LR 271-314 [ Links ]
Zimmermann R and Visser DP Southern Cross: Civil Law and Common Law in South Africa (Clarendon Press Oxford 1996) [ Links ]
Zimmermann R, Visser DP and Reid K (eds) Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (Juta Cape Town 2006) [ Links ]
Register of old authorities
Codex of Justinian [ Links ]
De Groot Inleidinge tot de Hollandsche Rechts-Geleerdheid [ Links ]
Digest of Justinian [ Links ]
Paul Sententiae [ Links ]
Pothier Traité des Obligations [ Links ]
Voet Commentarius ad Pandectas [ Links ]
Register of cases
Aegean Sea Traders Corp v Repsol Petroleo SA (The Aegean Sea) 1998 CLC 1090 (QB) [ Links ]
Barclays Bank Plc v Fairclough Building Ltd 1994 CLC 529 (QB) [ Links ]
British and Commonwealth Holdings Plc v Quadrex Holdings Inc 1989 1 QB 842 [ Links ]
CTI Group Inc v Transclear SA (The Mary Nour) 2007 2 CLC 530 (QB) [ Links ]
Forsikringsaktieselskapet Vesta v Butcher 1989 AC 852 (HL) [ Links ]
Paradine v Jane 1647 4 (KB) [ Links ]
Taylor v Caldwell 122 ER 309 [ Links ]
Tenant Radiant Heat Ltd v Warrington Development Corp 1988 1 EGLR 41 (CA) [ Links ]
Persimmon Homes Ltd v Bellway Homes Ltd 2012 CSOH 60 [ Links ]
Wilson v Dunbar Bank Plc 2008 SC 457 [ Links ]
Algoa Milling Co Ltd v Arkell and Douglas 1918 AD 145 [ Links ]
Chrysafis v Katsapas 1988 4 SA 818 (A) [ Links ]
Fluxman v Brittain 1941 AD 273 [ Links ]
Hanekom v Amod 1950 4 SA 412 (C) [ Links ]
Landau v City Auction Mart 1940 AD 284 [ Links ]
Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co 1970 1 SA 584 (T) [ Links ]
Linton v Corser 1952 3 SA 685 (A) [ Links ]
Leviseur v Frankfort Boere Ko-Operatiewe Vereeniging 1921 OPD 80 [ Links ]
Lloyd v Malcolmess & Co 1921 EDL 50 [ Links ]
Machanick v Simon 1920 CPD 333 [ Links ]
Microuticos v Swart 1949 3 SA 715 (A) [ Links ]
Nel v Cloete 1972 2 SA 150 (A) [ Links ]
Repinz v Dacombe 1994 3 SA 756 (E) [ Links ]
Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA) [ Links ]
Sher v Frenkel & Co 1927 TPD 375 [ Links ]
Standard Finance Corporation of South Africa Ltd v Langeberg Ko-operasie Bpk 1967 4 SA 686 (A) [ Links ]
Union Government v Jackson 1956 2 SA 398 (A) [ Links ]
Van der Merwe v Reynolds 1972 3 SA 740 (A) [ Links ]
Ver Elst v Sabena Belgian World Airlines 1983 3 SA 637 (A) [ Links ]
Van Loggerenberg v Sachs 1940 WLD 253 [ Links ]
Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 [ Links ]
Wehr v Botha 1965 3 SA 46 (A) [ Links ]
West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 [ Links ]
Register of legislation
Bürgerliches Gesetzbuch (German Civil Code) [ Links ]
Burgelijk Wetboek (Dutch Civil Code) [ Links ]
Restatement (Second) of the Law of Contracts (United States) [ Links ]
List of abbreviations
BGB Bürgerliches Gesetzbuch
BW Burgelijk Wetboek
C Codex Justinianus
D Digesta Justiniani
Edinburgh LR Edinburgh Law Review
Int Business LJ International Business Law Journal
Stell LR Stellenbosch Law Review
1 Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1; West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173; Fluxman v Brittain 1941 AD 273; Microuticos v Swart 1949 3 SA 715 (A); Linton v Corser 1952 3 SA 685 (A); Union Government v Jackson 1956 2 SA 398 (A); Standard Finance Corporation of South Africa Ltd v Langeberg Ko-operasie Bpk 1967 4 SA 686 (A); Nel v Cloete 1972 2 SA 150 (A); Van der Merwe v Reynolds 1972 3 SA 740 (A); Ver Elst v Sabena Belgian World Airlines 1983 3 SA 637 (A); Chrysafis v Katsapas 1988 4 SA 818 (A).
2 Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA).
3 Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA).
4 Joubert and Faris (eds) LAWSA para 461.
5 Joubert and Faris (eds) LAWSA para 461; Zimmerman and Visser Southern Cross 307; Hutchinson and Pretorius (eds) Contract 277 (table 12.1), 278, 282; Van der Merwe et al Contract 293; Van der Merwe and Du Plessis Introduction 261 et seq; Lubbe and Van der Merwe 1999 Stell LR 151.
6 Wessels Contract 777.
7 Wessels Contract 778.
8 Joubert Contract 205.
9 De Wet and Van Wyk Kontraktereg en Handelsreg 162.
10 Van Jaarsveld, Boraine and Oosthuizen Handelsreg 162.
11 Zimmerman and Visser Southern Cross 306.
12 Zimmermann, Visser and Reid (eds) Mixed Legal Systems 306.
13 Hutchinson and Pretorius (eds) Contract 278.
14 Hutchinson and Pretorius (eds) Contract 282-283.
15 Christie Contract 519, 530.
16 Kerr Contract 607.
17 Kerr Contract 615.
18 Kerr Contract 615 n 282.
19 Kerr Contract 614 et seq.
20 Kerr Contract 614.
21 Kerr Contract 615-616.
22 Kerr Contract 616.
23 Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA).
24 Poste and Whittuck Institutes para 110.
25 See also D 22 1 32.
26 Kaser Roman Private Law 194.
27 Kaser Roman Private Law 194.
28 D 50 17 63.
29 D 50 17 63: Qui sine dolo malo ad iudicium provocat, non videtur moram facere.
30 Poste and Whittuck Institutes para 280.
31 Kaser Roman Private Law 194.
32 Van Zyl Romeinse Privaatreg 270.
33 D 50 17 88; D 40 5 26 1.
34 D 50 17 88.
35 Nulla intellegitur mora ibi fieri, ubi nulla petitio est.
36 D 40 5 26 1.
37 Apparet igitur subventum fideicommissis libertatibus, ut in re mora facta esse his videatur et ex die quidem, quo libertas peti potuit, matri traderentur manumittendi causa, ex die vero, quo petita est, ingenui nascantur. Plerumque enim per ignaviam vel per timiditatem eorum, quibus relinquitur libertas fideicommissa, vel ignorantiam iuris sui vel per auctoritatem et dignitatem eorum, a quibus relicta est, vel serius petitur vel in totum non petitur fideicommissa libertas: quae res obesse libertati non debet. ...
38 Van Zyl Romeinse Privaatreg 271.
39 D 22 1 32.
40 Van Zyl Romeinse Privaatreg 271 n 90.
41 Mora fieri intellegitur non ex re, sed ex persona, id est, si interpellatus oportuno loco non solverit: quod apud iudicem examinabitur: nam, ut et Pomponius libro duodecimo epistularum scripsit, difficilis est huius rei definitio. Divus quoque Pius Tullio Balbo rescripsit, an mora facta intellegatur, neque constitutione ulla neque iuris auctorum quaestione decidi posse, cum sit magis facti quam iuris.
42 D 44 7 45; D 45 1 91 3.
43 Van Zyl Romeinse Privaatreg 271 n 90.
44 Is, qui ex stipulatu Stichum debeat, si eum ante moram manumiserit et is, priusquam super eo promissor conveniretur, decesserit, non tenetur: non enim per eum stetisse videtur, quo minus eum praestaret.
45 Sequitur videre de eo, quod veteres constituerunt, quotiens culpa intervenit debitoris, perpetuari obligationem, quemadmodum intellegendum sit. ...
46 ... Et Celsus adulescens scribit eum, qui moram fecit in solvendo Sticho quem promiserat, posse emendare eam moram postea offerendo: esse enim hanc quaestionem de bono et aequo: in quo genere plerumque sub auctoritate iuris scientiae perniciose, inquit, erratur. ...
47 Buckland Roman Law 336.
48 D 12 1 5.
49 Quod te mihi dare oporteat si id postea perierit, quam per te factum erit quominus id mihi dares, tuum fore id detrimentum constat. Sed cum quaeratur, an per te factum sit, animadverti debebit, non solum in potestate tua fuerit id nec ne aut dolo malo feceris quominus esset vel fuerit nec ne, sed etiam si aliqua iusta causa sit, propter quam intellegere deberes te dare oportere.
50 See also Thomas Roman Law 254 n 38, who cites D 12 1 5 (dealing with rendering performance impossible and not mora debitoris); D 16 3 1 22 (which deals with a failure to act on demand); D 19 1 3 9 (there is no such passage - D 19 1 3 has only four subparagraphs).
51 Kaser Roman Private Law 195. See also Van Zyl Romeinse Privaatreg 272.
52 C 2 41 3.
53 D 22 1 24 2.
54 D 45 1 72 2.
55 D 22 1 32.
56 D 17 1 10 3.
57 See also C 4 34 2.
58 ... sed ubi iam coepit mora faciendae insulae fieri, tunc agetur diesque obligationi cedit.
59 D 45 1 113.
60 D 22 1 21.
61 D 22 1 21.
62 D 22 1 21, 22.
63 D 45 1 43. See also the similar views of Marcellus in D 46 3 72.
64 D 19 1 3 4.
65 D 22 1 23.
66 D 22 1 23.
67 D 2 14 54.
68 D 22 1 9 1.
69 See Paul Sententiae 2 12 7, 2 13 1, 3 8 4; D 2 14 54; D 18 4 21; D 18 6 17; D 18 6 19; D 19 1 3 3-4; D 19 1 47; D 19 1 49 1; D 19 1 51; D 19 1 54; D 21 2 69 4; D 22 1 8; D 22 1 9 1; D 22 1 12; D 22 1 14; D 22 1 17 3; D 22 1 21; D 45 1 113; D 45 1 127.
70 D 45 1 113.
71 Voet Commentarius ad Pandectas 22 1 24 et seq.
72 Voet Commentarius ad Pandectas 22 1 24.
73 Voet Commentarius ad Pandectas 22 1 26.
74 Voet Commentarius ad Pandectas 22 1 25.
75 De Groot Inleidinge tot de Hollandsche Rechts-Geleerdheid 3 19 11.
76 Pothier Traité des Obligations paras 143, 146, 147.
77 Pothier Traité des Obligations para 159 et seq.
78 Pothier Traité des Obligations para 164.
79 Voet Commentarius ad Pandectas 22 1 29.
80 Voet Commentarius ad Pandectas 22 1 29.
81 Pothier Traité des Obligations para 148.
82 Pothier Traité des Obligations para 149.
83 Paradine v Jane 1647 4 (KB).
84 Draetta 1996 Int Business LJ 548.
85 Taylor v Caldwell 122 ER 309.
86 Wilson v Dunbar Bank Plc 2008 SC 457 para 23 et seq.
87 Persimmon Homes Ltd v Bellway Homes Ltd 2012 CSOH 60.
88 Persimmon Homes Ltd v Bellway Homes Ltd 2012 CSOH 60 para 12.
89 Persimmon Homes Ltd v Bellway Homes Ltd 2012 CSOH 60 para 12.
90 British and Commonwealth Holdings Plc v Quadrex Holdings Inc 1989 1 QB 842 859; Barclays Bank Plc v Fairclough Building Ltd 1994 CLC 529 (QB) 542 et seq; Aegean Sea Traders Corp v Repsol Petroleo SA (The Aegean Sea) 1998 CLC 1090 (QB) 1106; CTI Group Inc v Transclear SA (The Mary Nour) 2007 2 CLC 530 (QB) 534.
91 Forsikringsaktieselskapet Vesta v Butcher 1989 AC 852 (HL) 879; Tenant Radiant Heat Ltd v Warrington Development Corp 1988 1 EGLR 41 (CA); Barclays Bank Plc v Fairclough Building Ltd 1994 CLC 529 (QB) 542 et seq.
92 Forsikringsaktieselskapet Vesta v Butcher 1989 AC 852 (HL) 879; Tenant Radiant Heat Ltd v Warrington Development Corp 1988 1 EGLR 41 (CA); Barclays Bank Plc v Fairclough Building Ltd 1994 CLC 529 (QB) 542 et seq.
93 See also §243 Restatement (Second) of the Law of Contracts, which deals with claims for damages for total breach.
94 §237 Restatement (Second) of the Law of Contracts.
95 §261 Restatement (Second) of the Law of Contracts.
96 §265 Restatement (Second) of the Law of Contracts.
97 Art 6:75 Burgelijk Wetboek (BW).
98 Hartkamp, Tillema and Ter Heide Contract Law 132; Nieuwenhuis et al Vermogensrecht 552553; Hartkamp Compendium 261.
99 De Jong Verbintenissen 18.
100 "... kan de rechtshandeling waaruit de verbintenis voortspruit, de doorslag geven bij e beantwoording van de vraag of de tekortkoming al dan niet aan de debiteur moet worden toegerekend, hoewel zij niet aan zijn schuld te wijten is".
101 Hartkamp, Tillema and Ter Heide Contract Law 132; Brahn and Reehuis Vermogensrecht 297, 309.
102 De Jong Verbintenissen 8.
103 Schwartze Leistungsstörungen 421.
104 Art 286(1) Bürgerliches Gesetzbuch (BGB).
105 Art 286(2) BGB.
106 Schwartze Leistungsstörungen 421.
107 Lorenz 1997 Edinburgh LR 328.
108 Lorenz 1997 Edinburgh LR 329.
109 See also Zimmermann 2002 Edinburgh LR 271 278.
110 Lorenz 1997 Edinburgh LR 317 328.
111 Joubert and Faris (eds) LAWSA para 461.
112 Wessels Contract 778.
113 De Wet and Van Wyk Kontraktereg en Handelsreg 162.
114 Steyn Mora Debitoris 42.
115 See also Repinz v Dacombe 1994 3 SA 756 (E) 760.
116 Steyn Mora Debitoris 42.
117 Steyn Mora Debitoris 42 et seq.
118 Steyn Mora Debitoris 42.
119 Steyn Mora Debitoris 45.
120 Steyn Mora Debitoris 45.
121 Steyn Mora Debitoris 45.
122 Steyn Mora Debitoris 42 et seq.
123 Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co 1970 1 SA 584 (T) 587.
124 De Wet and Van Wyk Kontraktereg en Handelsreg 162 n 35.
125 Machanick v Simon 1920 CPD 333; Lloyd v Malcolmess & Co 1921 EDL 50; Leviseur v Frankfort Boere Ko-Operatiewe Vereeniging 1921 OPD 80; Van Loggerenberg v Sachs 1940 WLD 253; Hanekom v Amod 1950 4 SA 412 (C); Wehr v Botha 1965 3 SA 46 (A).
126 De Wet and Van Wyk Kontraktereg en Handelsreg 162 n 35.
127 Van Jaarsveld, Boraine and Oosthuizen Handelsreg 162 n 30.
128 Hanekom v Amod 1950 4 SA 412 (C); Wehr v Botha 1965 3 SA 46 (A).
129 De Wet and Van Wyk Kontraktereg en Handelsreg 162 n 35.
130 Van Jaarsveld, Boraine and Oosthuizen Handelsreg 162 n 30.
131 Algoa Milling Co Ltd v Arkell and Douglas 1918 AD 145.
132 Sher v Frenkel & Co 1927 TPD 375.
133 Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co 1970 1 SA 584 (T).
134 Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co 1970 1 SA 584 (T).
135 Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co 1970 1 SA 584 (T) 587.
136 Van Jaarsveld, Boraine and Oosthuizen Handelsreg 162 n 30.
137 Steyn Mora Debitoris 42.
138 Van Jaarsveld, Boraine and Oosthuizen Handelsreg 162 n 30.
139 Zimmermann and Visser Southern Cross 307 n 19.
140 Victoria Falls and Transvaal Power Company Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1.
141 Victoria Falls and Transvaal Power Company Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 31.
142 West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173.
143 West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 182-183.
144 Landau v City Auction Mart 1940 AD 284.
145 Landau v City Auction Mart 1940 AD 284 292.
146 Landau v City Auction Mart 1940 AD 284 291.
147 See Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1; West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173; Fluxman v Brittain 1941 AD 273; Microuticos v Swart 1949 3 SA 715 (A); Linton v Corser 1952 3 SA 685 (A); Union Government v Jackson 1956 2 SA 398 (A); Standard Finance Corporation of South Africa Ltd v Langeberg Ko-operasie Bpk 1967 4 SA 686 (A); Nel v Cloete 1972 2 SA 150 (A); Van der Merwe v Reynolds 1972 3 SA 740 (A); Ver Elst v Sabena Belgian World Airlines 1983 3 SA 637 (A);Chrysafis v Katsapas 1988 4 SA 818 (A).
148 Steyn Mora Debitoris 42.
149 Van der Merwe et al Contract 293.