Chapter 12 PT 2 Flashcards
(19 cards)
Consequences of mora debitoris:
1) One consequence of mora which is not shared though is the perpetuation
obligationis (perpetuation of the obligation).
AND one can claim the usual remedies:
- Specific performance,
- Damages, and in limited instances,
- The right to rescind the contract.
Perpetuatio obligationis - the continuation of an obligation
1) Usually, supervening impossibility of performance that cannot be attributed to either party’s fault, eliminates the contract
However, if the debtor was in mora, though, then the contract stands unless the debtor can show that even if he had performed timeously, the same fate would have occurred if the performance had been in the hands of the creditor
In other words: The debtor remains liable unless he can prove the object would have
become impossible even if delivered on time
For example, in the case of a specific sale:
1) Usual rule is that the risk passes to the purchaser as soon as the contract is concluded more precisely when the sale is perfecta
Impossibility attaches to the performance of the other party:
The debtor remains liable to make their own performance as stipulated in the contract
If it attaches to debtor’s own performance:
The debtor must presumably pay a sum of
money in lieu of performance – in effect, a form of damages.
Perfecta when:
1) Goods determined;
2) Price determinable; and
3) No suspensive condition.
If, through no fault of the seller, the item is accidentally destroyed prior to delivery:
The purchaser is bound to pay the pric
If the seller lapses into mora in respect of their duty to deliver:
The risk reverts to the seller and
in the event of destruction of the item, will not be able to recover the price unless, again, the same fate would in any event have befallen the item.
Specific Performance:
1) The right to claim specific performance arises as soon as the debt is due and enforceable - it is not dependent on mora
Damages:
1) A creditor is obliged to receive damages for any loss incurred throughout the time of delay of performance
In the case of the performance being monetary, then -
1) The debtor is liable for the tempore mora (mora interest) and any other damages suffered.
2) The courts do not require proof of actual damages sustained: act on the assumption that the capital sum would have been productively employed had the payment been made.
3) Obligation to pay a liquidated sum of money: is payable as from the date of mora.
4) Unless stated otherwise: the rate prescribed by the Minister of Justice in terms of section 1 of the Prescribed Rate of Interest Act.
Rescission/Cancellation:
1) Cancellation of a contract returns the parties to their pre-contractual state, effectively nullifying the agreement and relieving all parties of their continuing obligations under that contract
2) This is a drastic measure, generally only permissible under tightly controlled conditions, as it can significantly impact the rights and obligations of the parties involved
3) A debtor falling into mora does not give rise to the option of cancellation for the creditor unless a clause in the contract states such or if time is the essence of the contract.
Time is of the essence when:
1) The parties have expressly agreed (express lex commissoria) that, in the event of the debtor failing to perform timeously, the creditor will be entitled to rescind the contract
2) The parties have tacitly come to such an agreement (tacit lex commissoria) or
3) In the absence of such an agreement, the creditor has made time of the essence by
sending the debtor a notice of rescission
Express lex commissoria
1) This is a clause specifically
included in a contract that stipulates the conditions under which the contract may be
cancelled
2) This define clause must clearly
what constitutes a breach significant enough to trigger cancellation.
3) If not fixed, must first place
debtor in mora ex persona
Tacit lex commissoria:
1) This implies a right of
cancellation due to the nature
of the contract or the circumstances surrounding its formation, even if not explicitly stated (intention of parties)
2) This might be inferred from the importance of timely performance or the specific characteristics of what was
contracted for
Notice of rescission:
1) This involves one party notifying
the other that they intend to rescind the contract due to a breach
2) This notice must typically be clear and unequivocal, giving the breaching party a final opportunity to remedy the breach within a reasonable period, if applicable.
3) Onus is on the creditor
Mora Creditoris
1) The culpable failure of a creditor to cooperate timeously with the debtor to
enable the debtor to perform
2) Elements: Unreasonable delay by the creditor.
Requirements for mora creditoris:
1) Debtor obliged to perform
2) Creditor obliged to co-operate
3) Debtor must tender proper performance to the creditor
4) Delay by creditor
5) Fault
