MORA
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]
