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MORA The mere fact of a legal duty not being discharged at the time when it is due can give rise to important legal consequences, which either may depend on the terms of the contract giving rise to the duty, or on rules of positive law. After such delay the creditor is entitled to use all legal means to obtain satisfaction for his demand: thus he may be able to bring his action against his debtor or against those who have become sureties for him, and, in the case of pledge, he may sell the thing and pay himself out of the proceeds of the sale. For particular cases there are particular provisions; for instance, the purchaser of a thing after receiving it must pay interest on the purchase-money, if there is delay in paying it after the time fixed for payment (Dig. 29, 1, 13.20). The rule is the same as to debts due to the fiscus, if they are not paid, when they are due. An emphyteutic tenant could be ejected if he delayed the payment of his rent for three years.

A stipulation, similar in principle to our bond, was frequently entered into, by which a party was made subject to a penalty, if he did not perform some act within the time agreed on. The delay of which we have been speaking was simply a non-fulfilment of a duty at the proper time; and the term mora is sometimes applied to such cases. But that which is properly Mora is when the delay on the part of him who owes a duty can be attributed to his fault (culpa).

Mora in this its technical sense presupposes the existence of an obligation enforceable by action and also knowledge of liability on the part of the debtor. As a general rule a debtor was not in mora, until he had received an interpellatio or notice from his creditor demanding satisfaction of his claim ( “si interpellatus opportuno loco non solverit, quod apud judicem examinabitur” ). In delictal obligations, however, and in case of the absence of the debtor, interpellatio was not required. Where, too, a person was bound to make some payment or performance by a fixed date, he was understood to have sufficient notice of the wish of the creditor to receive payment at this date without any special interpellatio being necessary. (For references to the modern literature relating to the maxim of the glossators, dies adjectus interpellat pro homine, see Windscheid, Pandekten, 3.278, n. 4.)

A debtor was not in mora who failed to perform his obligation, if there was a good excuse for his non-performance. Some modern writers are of opinion that all delay in a person discharging an obligatio is Mora, unless there be some impediment which is created by causes altogether external to the debtor himself (impedimenta naturalia), but there are many reasons for the opinion that Mora in its proper sense always implied some culpa on the part of the debtor (Vangerow, Pandekten, § 588). In fact, the special rules about excusationes a mora only have a meaning on this supposition.

When Mora could be legally imputed to a man, he was bound to make good to his creditor all loss which was a consequence of it. Thus, in cases where a man did not pay money or deliver property of another when he ought, he was liable after Mora had taken place, if not previously liable, for interest and mesne profits: this rule, however, owing to technicalities of procedure, only applied to obligationes bonae fidei, not to obligationes stricti juris. Again, it was a rule that a bailee of property was not liable on account of its accidental loss or deterioration (casum nemo praestat); but after Mora, if a man was bound to deliver a thing to another, and it was accidentally destroyed or injured, he was to bear the loss (Dig. 12, 1, 5). So, too, if a thing to be delivered declined in value, the creditor could claim its highest value since the date of Mora.

There might be Mora on the side of the creditor (mora accipiendi) as well as on the side of the debtor (mora solvendi).

A creditor was in mora if he refused to accept performance of what was due to him. The debt was not extinguished by such refusal, but the debtor was subsequently only liable for culpa lata, and the creditor was bound to indemnify him for any loss which was a consequence of the mora accipiendi. (Dig. 22, 1, de Usuris et Fructibus; Madai, Die Lehre von der Mora; Wolff, Zur Lehre von der Mora; Fr. Mommsen, Beiträge zum Obligationenrecht, 3 Abth.; Vangerow, Pandekten, 3.588; Windscheid, Pandekten, § § 276, 281, 345, 346; Id. im Rhein. Arch. 44.2; Knich, Die Mora des Schuldners.

[G.L] [E.A.W]

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