Chapter 12 PT 3 Flashcards
(20 cards)
Debtor obliged to perform:
1) There must be a clear obligation on the part of the debtor to perform under the terms of the contract.
2) The obligation must be active, but the debt need not be due and enforceable
Creditor obliged to co-operate:
1) The contract must involve some form of cooperation from the creditor to enable the debtor to fulfil their contractual obligations.
2) The creditor’s cooperation must be integral to the debtor’s ability to perform their obligations effectively –
3) There can be no mora creditoris in respect of a negative obligation or a positive
obligation that can be discharged without the cooperation of the creditor
Debtor must tender proper performance to the creditor:
1) The debtor must have attempted to perform their part of the contract in the manner required by the contract terms.
2) This “tender of performance” must be complete and conform to the contractual specifications.
3) For instance, if the contract requires delivery at a specific time or location, the debtor must be ready and willing to deliver accordingly
Delay by creditor:
1) There must be a delay or refusal by the creditor to accept the performance when tendered by the debtor.
2) This delay can take various forms, such as not being present at a designated place for receiving goods or services, not providing necessary access, or outright refusal without just cause.
3) The idea of delay presupposes that the time for performance has been fixed.
If such a time has been fixed in the contract –
1) Mora creditoris arises automatically on the default of the creditor.
2) No fixed time of acceptance in the contract or if the debtor wishes to discharge the debt before the time stipulated for performance (where he or she is entitled to do so) –
3) The debtor must notify the creditor .of the time when they wish to perform,
allowing the creditor a reasonable opportunity to prepare to receive the
performance
Fault:
1) The delay or failure on the part of the creditor must be due to their fault.
2) In the context of this contract, ‘fault’ refers to negligence, wilful inaction, or any improper
behavior on the part of the creditor that hinders the completion of the contract.
3) It must be shown that the creditor’s actions were the direct cause of the non-
performance; if not, mora creditoris is excluded.
Consequences of mora creditoris:
1) Cancellation
2) Damages
3) Specific performance
4) Counter-performance
5) Care of article and supervening impossibility of performance
6) Effect on security
7) Discharge of debt
Cancellation
1) In cases where the creditor’s failure to accept performance goes to the essence of the contract, the debtor may be entitled to cancel the contract.
2) This is done in the same way as with mora debitoris – when time is of the essence.
Specific performance:
1) The debtor may seek a court order for specific performance, compelling the creditor to fulfil their contractual obligations, such as accepting the delivery of goods or services.
2) This remedy is particularly relevant when damages are inadequate to compensate for the breach
Counter-performance:
1) If the contract involves reciprocal obligations, the debtor may institute a claim for counter- performance. However, where the debtor has been prevented from fully performing their side of the contract by the failure of the creditor’s necessary cooperation –
2) The debtor’s right to claim counter-performance is subject to a reduction by the amount saved in not having fully to perform their obligation
Damages
1) If the debtor suffers losses due to the creditor’s delay or non-cooperation, they can claim damages, regardless of whether they decide to cancel or uphold the contract.
2) These are calculated based on the loss directly and foreseeably caused by the creditor’s breach.
Care of article and supervening impossibility of performance:
1) If the debtor is holding goods or items that were to be transferred to the creditor, they must take reasonable care of these items during the delay.
2) Meaning, the debtor’s responsibility is limited to dolus (intent) and culpa lata (gross negligence).
Care of article and supervening impossibility of performance
1) If, during this period (mora), performance becomes impossible due to no fault of the debtor (i.e., goods perish or are destroyed), the debtor may be discharged from their obligation to perform.
2) However, the creditor remains liable to make counter-performance unless the above is present.
Effect on security:
1) If the creditor’s delay affects the security related to the contract (such as security in goods that are to be delivered), the debtor may be relieved from certain responsibilities associated
with this security.
2) For instance, if the value of secured items decreases due to the creditor’s delay in
acceptance, the debtor may seek to reduce their liability accordingly
Discharge of debt:
1) In extreme cases where the creditor perpetually refuses to accept performance or their non- cooperation renders the performance substantially useless, the debtor may be discharged from the debt or obligation entirely.
2) This severe consequence is typically considered only when all other remedies are impractical or insufficient.
Positive Malperformance
Substandard performance (content) by one of the parties in either of two forms:
1) Duty to act: positive malperformance occurs when the debtor performs in an
incomplete or defective manner.
2) Obligatio non faciendi: positive malperformance occurs when the debtor does the act they were bound to refrain from doing.
3) Elements: relates to the content of the performance made.
Remedies:
1) The remedies aimed at positive malperformance are directed either at rescission or fulfilment of the contract
When there is a breach of a negative duty –
1) The creditor may apply for an interdict restraining the debtor from performing the
forbidden act or for an order directing the debtor to undo what they have done in
contravention of the duty imposed upon them
Remedies aimed at rescission:
1) If there is a lex commissoria: the creditor may cancel the contract regardless of whether the malperformance was a material one or not.
2) This may only be done once notice has been given and the debtor has not corrected the malperformance by the time the set time has passed
If there is no cancellation clause:
1) Then the creditor may only cancel the contract if the breach is so serious that one can’t reasonably expect him to abide by the contract and be satisfied with damages alone.
2) This is an objective test and must be conducted fairly and reasonably.
