Mora Debitoris

Mora debitoris is the failure, of the debtor, to perform on time

Since mora consists of an omissio, it can only occur concerning a positive obligation

A debtor who acts in breach of a negative obligation is guilty of positive malperformance

The creditor may reject imperfect performance and demand proper performance within a
reasonable time, in which case a failure to comply will place the debtor in mora

If the imperfect performance is made after the debtor is already in mora, the creditor can
decide whether to treat it as a mora or positive malperformance

Requirements
These have to be met before a debtor can be said to be in mora:

The debt must be due and enforceable

The time for performance must be fixed, either in the contract or by a subsequent demand
for performance, and the debtor must have failed to perform timelessly

The failure to perform on time must be without lawful excuse

Debt must be due and enforceable

The creditor must have a valid right to claim performance forthwith and the claim cannot be
defeated by a valid excuse

If there is no agreement to the contrary, the creditor may demand performance immediately
on the conclusion of the contract or where that is not possible or practicable, as soon as it is
reasonably expected.
If the parties agree that the time for the performance depends on the fulfilment of a
suspensive condition, the debt is not due until the arrival of the stipulated time or the
fulfilment of the condition
Failure to perform timeously
Although a debtor is liable to perform as soon as their debt becomes due, failure to do so does
not constitute mora unless or until a definite time has been fixed for performance and that
time has arrived

The time for performance may be fixed by agreement in a contract (mora ex re) or by a
subsequent demand for performance (mora ex persona)

Mora Debitoris 1
 mora ex re
Where the parties have expressly or impliedly stipulated a time for performance in their
contract, a culpable failure by the debtor to perform on or before the due date automatically
places them in mora, without the need for any intervention by the creditor

mora ex persona
Where there is no contract regarding the time for performance, the mere delay by the debtor
in performing their obligation cannot automatically result in the debtor falling into mora. The
creditor must place the debtor in mora by demanding that they perform on or before a definite
date or time that is reasonable in the circumstances
The debtor has the onus to show that the time period they are given is unreasonable unless the
demand is coupled with a notice of rescission

The court will only take cognisance of the factors affecting the time of the performance
that were or ought reasonably to have been within the contemplation of the parties at the
time of entry into the contract.

Fault
The delay must be due to the fault of the debtor or of persons for whom they are responsible
The fault can be excused only if there is some legal justification for the failure to perform on
time

If the debtor was in reasonable ignorance of the nature of the performance owed by them
or the fact that it was due, there is no mora

If the delay was caused by the creditor or by circumstances beyond the control of the
debtor, the impossibility of performance is thus an excusing factor provided that it is
temporary and not due to the fault of the debtor

Consequences
Perpetuatio obligations

Usually, supervening impossibility of performance that cannot be attributed to either party

terminates the contract. If the debtor was in mora when the performance became impossible,
their obligation to perform is not discharged unless they can show (in the case of a duty to
deliver a thing) that even if they had made a timeous performance, the thing would have
suffered the same fate in the hands of the creditor

If the impossibility attaches to the performance of the other party, the debtor remains liable to
perform, if it attaches to their own performance, the debtor must pay a sum of money in lieu
of performance: in effect, a form of damages

Mora Debitoris 2
 In the case of a sale, the rule is that the risk passes to the purchaser as soon as the contract is
concluded. If, though no fault of the seller, the merx is accidentally destroyed prior to
delivery, the purchaser is bound to pay the price even though the performance by the seller is
no longer possible

If the seller lapses into mora in respect of their duty to deliver, the risk reverts back to the
seller

Damages
The debtor is obligated to compensate the creditor in damages for any losses that the creditor
suffers due to the delay

In the case of an obligation to pay a liquidated sum of money, interest is payable as from the
date of mora apart from any other damage that the creditor might suffer

Rescission
This is an extraordinary remedy that is available only in a limited number of circumstances.
The mere fact that the debtor is in mora does not entitle the creditor to rescind the contract
without further ado

If the debtor is in mora, the creditor may rescind the contract if time is of the essence of the
contract (Nel v Cloete)

Time is of the essence when:

the parties expressly agreed that, in the event of the debtor failing to perform
timelessly, the creditor will be entitled to rescind the contract

the parties have tacitly come to such an agreement

in the absence of such an agreement, the creditor has made time of the essence by
sending the debtor a notice of recession

Mora Debitoris 3