IURI 373

Forms of Breach

Study Unit 11
Breach of Contract

Part 1 Introduction and Mora debitoris

 Learning Outcomes
After engaging with the materials and activities in this study unit you should
have:
● A clear understanding of the divided concept of breach of contract in South African
law with reference to the two main categories of breach of contract, namely
malperformance and anticipatory breach;
● A critical and integrated understanding of the nature, requirements and
consequences of the five forms of breach recognised in South African law, namely
positive malperformance, mora debitoris, mora creditoris, repudiation and
prevention of performance;
● The ability to critically distinguish the different forms of breach recognised in
South African law;
● A clear understanding that the specific form of breach influences the nature and
availability of remedies for breach of contract; and
● The ability to apply the IPAC method to problem-based questions pertaining to
breach of contract.
 Introduction (1)
• Pacta sunt servanda – parties must
honour their agreements
• Breach of contract occurs where either
party, by an act or omission and without
lawful excuse, fails in any way to honour
his or her contractual obligations
• Distinct types of breach, however a
unitary concept of breach is also
recognised in our law
• “Debtors and Creditors”
• Some forms of breach can only be
committed by a debtor or a creditor;
and some by both.
• the debtor is the party who has to
perform a specific obligation
• the creditor is the party who is
entitled to the performance
 Introduction (2)

Recognised forms of breach of contract:

• Mora debitoris – debtor fails to make timeous
Negative performance
Malperformance • Mora creditoris – creditor fails to cooperate
timeously with the debtor, to enable the debtor’s
performance
• Positive malperformance – debtor performs in a
defective or incomplete manner
• Repudiation – either party indicates unequivocal
Anticipatory intention not to honour the agreement
Breach
• Prevention of performance – either party
renders performance impossible

Unitary concept of breach

 Remember!!!
Class exercise: What type of • Where a contract has more
breach is present? (7 min) than one obligation, a breach
Matt is a plumber, and undertakes to of contract can exist w.r.t one
replace Tumi’s damaged kitchen sink on
1 August 2022. Matt undertakes to or more of the obligations.
replace all pipes and the sink. • It is possible that different
a. Matt arrives at Tumi’s house on 1 forms of breach exist w.r.t
August, only to find out from Tumi’s different obligations from the
neighbour that he has left for a two
week vacation. same contract.
b. On 1 August, Tumi sets fire to his
house, to claim insurance and the Why do you think distinct forms of
kitchen sink is destroyed.
breach are important?
c. Matt does not show up at Tumi’s
house on 1 August 2022. • For analytical purposes
d. Matt calls Tumi, who is on vacation
• To assist with determining
on the 1 August, and Tumi claims consequences
there never had an agreement,
despite having signed one.
e. Matt replaces the sink on the
1 August, but does not put in new
pipes.
 Mora debitoris
“Mora”
• Delay without lawful excuse of the performance of
a contractual duty OR a wrongful failure to perform
timeously
“Mora debitoris”
• Failure of a debtor, without lawful excuse, to
make timeous performance of a positive obligation
(obligatio faciendi) that is due and enforceable and
still capable of performance in spite of such failure
 Mora debitoris: Requirements

The debtor is in mora when the following

requirements are met:
1. Debt is due and enforceable

2. Debtor has failed to perform timeously

3. Failure must be unlawful/unjustified (fault)

Activity:

Mora debitoris OR Positive

malperformance? (7 min)
Tom concluded a contract of sale with Dina
in terms of which he bought property, which
he intended to use for student
accommodation.

The contract had a clause:

“The purchaser must be given possession
and vacant occupation of the property on a
10 August 2022.”

Although Dina handed over the keys to Tom

timeously, a family is still living on the
premises after the 10 August 2022.
Possible answer:

Principal agreement of sale:

• Obligation 1: Tom is the debtor in respect of paying the purchase price and Dina must accept payment as the
creditor.
• Obligation 2: Dina is the debtor in respect of delivery of the property and Tom must accept delivery as creditor.
Discussion of:
• Mora debitoris: Failure of a debtor, without lawful excuse, to make timeous performance of a positive
obligation that is due and enforceable and still capable of performance in spite of such failure
 Requirements + Where there is a failure to perform a material term of the contract timeously, a right to
cancel exists.
• Positive malperformance: Debtor performs in a defective or incomplete manner
 Where performance is materially defective, a right to cancel exists.
Has performance taken place?
 Dina must give possession - Yes
X Dina must give vacant occupation – No
• The performance is clearly defective, so you have a case for breach by ‘positive malperformance’.
• But is the debtor also in mora? Requirements met? (Yes?)
• The issue is whether the clause and ‘vacant occupation’ is in a fact material term to the contract?

Courts have found that in a sale of land the failure to give vacant possession is a breach of a vital term.
(Tshandu v City Council Johannesburg 1947 1 SA 494 (W) & Sweet v Ragerguhara 1978 1 SA 131 (D))
Requirements of mora debitoris
Debt must be due and enforceable
• Debt is due and enforceable when the creditor has a valid right to
claim performance
• Debt must be physically, practicable, reasonable capable of being
discharged
• General rule: creditor may demand performance immediately or
within a reasonable period
• Exceptions: Debt not due until any related suspensive condition is
fulfilled, or if parties have agreed on a time for performance, until
that time
• No mora where debt already extinguished or duty to perform is
dependent on the creditor first doing something
TAKE NOTE
The creditor MUST perform or tender performance of his/her own
reciprocal obligation before demanding performance from the debtor.
Requirements of mora debitoris
Performance must be late
• This form of breach of contract has to do with time of performance only, and
not with any other aspects of the contract.
• Time for performance must be fixed and must have arrived
Three forms of “mora”:
• Mora ex re, mora ex lege and mora ex persona

1. Mora ex re
• The debtor is automatically in mora if he/she does not perform by the date or
time specified.
• There must be a “precisely calculable date”; it is certain that it will arrive and
when it will arrive
• Fulfilment of a suspensive condition (eg ‘on the birth of your first born’) may
render the debt due, but a demand is still required to place the debtor in
mora.
• Fixed time can be implied when it is clear in the contract or on admission of
evidence as to the circumstances

2. Mora ex lege – as prescribed by law for an example see s 19(2) of the CPA
Requirements of mora debitoris:
Performance must be late

Forms of “mora” (cont…)

3. Mora ex persona
• If there is no particular date or time specified, the debtor will have to be placed in mora by a letter
of demand.
• The creditor must place the debtor in mora with a letter of demand (interpellatio) that debtor
must perform at set date or a reasonable time.
• Once the debt is due the demand can be delivered but the debtor does not fall into mora
immediately
• The demand must stipulate a date with a reasonable period of time, to allow the debtor to
perform.
o When the reasonableness of the time allowed for performance is in dispute, the onus
rests on the debtor to show that it is unreasonable unless the demand is coupled with
a notice of rescission.
o Case law is ambivalent
o The reasonableness of the time depends on the contract and the circumstances. The
court takes into account the parties’ intension, the nature of the performance due,
assumption to act promptly and carefully…
o A demand with an unreasonable stipulated time for performance cannot give rise to
mora
Requirements of mora debitoris
Failure must be unlawful/unjustified (Fault)
• Approach of courts: excuse where there was legal justification for
delay
• There is thus no mora where:
• Debtor reasonably ignorant of nature of performance owed
• Debtor reasonably ignorant of fact that performance was due
• Delay was caused by the creditor (mora creditoris)
• Delay was caused by circumstances beyond the control of the
debtor
• Debtor bears onus to show legal justification for delay
• Often stated: delay must be due to the fault of the debtor or persons
for whom debtor is responsible - Is fault a requirement for breach of
contract?
• Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA)
Consequences of mora debitoris

Usual remedies
Perpetuatio obligationis:
• Impossibility of performance without fault by any of the parties,
terminates contract
• Exception: Where debtor was in mora
• Obligation is not discharged, unless the debtor can show that the
result would have been the same even if performance was on
time.
• Example of a sale:
o When is a sale perfecta?
o Risk passes to the purchaser on conclusion of the contract
o Mora shifts risk
 Consequences of mora debitoris
Damages
• Debtor liable for losses
suffered as a result of the
delay
• Interest a tempore morae
• Mora interest – damages
flowing naturally from the
breach
• Prescribed Rate of Interest Act
55 of 1975
Recession/Cancellation
Specific performance
(Extraordinary remedy)
• Traditionally – Only if contract • When debt is due &
contained a lex commissoria enforceable – do not have to
(cancellation clause) prove mora
• Remedy extended – if the
debtor is in mora, the creditor
may rescind the contract if
time is of the essence of the
contract
• Nel v Cloete 1972 (2) SA 150
(A): When is time of the
essence?
• Where there is an express lex
commissoria
• Where there is a tacit lex
commissoria
• Where the creditor has made
time of the essence by
sending debtor a notice of
rescission
• Alfred McAlpine v TPA 1977 4
SA 310 (T)
Activity: Breach of contract – Mora debitoris (10 minutes)

Kate and Jack agree that Pam will take photographs

on their wedding day for the price of R10 000. Pam
arrives on the day and does a splendid job for the
newly weds. The next day, she delivers the photo’s
in a leather bound album as agreed.
Two weeks go by and the couple has not paid Pam.
Pam is aware that Kate and Jack are probably away
on their honeymoon. Nevertheless, Pam decides
that they have breached the agreement.
Advise Pam on whether the relevant claim for
breach of contract will be successful?