Mora Debitoris and the Principle of Strict Liability: Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA)

Parties generally enter into contractual relations with the sincere intention to fulfil all the obligations created in terms of their contract. However, for various reasons, parties sometimes do not comply with the terms of their contract. Where a party fails to perform at the agreed date and time or after receiving a demand from the creditor, the debtor commits breach of contract in the form of mora debitoris. The question then arises whether or not a debtor would also commit breach in the form of mora debitoris if the delay in performance cannot be attributed to wilful disregard of the contract or a negligent failure to perform on time. This was the question which the court had to determine in Scoin Trading (Pty) Ltd v Bernstein.

Unfortunately, the deceased passed away in November 2007 before the balance could be paid. The respondent was appointed executor of his estate and he acknowledged liability for payment of the balance of the purchase price but denied liability for interest. As a result, the appellant instituted action in the KwaZulu-Natal High Court for payment of the balance of the purchase price plus interest at the prescribed rate of 15.5% per annum.
The respondent argued that the deceased was not at fault in failing to pay the balance due to his untimely demise and therefore was not in mora and could not be liable for mora interest. Secondly, the respondent argued that the passing away of the deceased rendered performance impossible.

Judgment
The KwaZulu-Natal High Court granted judgment for the capital sum, but dismissed the claim for interest. The court held that to be in mora, failure to perform had to be due to fault on the part of the debtor. Since the deceased had no fault in the failure to perform, there could be no mora and consequently no mora interest.
The court rejected the second argument and indicated that unless the contract expressly stipulated otherwise or the transaction involved a delectus personae, the death of a debtor did not amount to impossibility as the duty devolved on the estate of the deceased.
The matter then went on appeal to the Supreme Court of Appeal to determine if the estate was liable to pay interest on the balance of the purchase price. In a unanimous judgment, Pillay AJA indicated that mora interest is a form of contractual damages and does not depend on fault. To claim mora interest, a creditor must only prove that a debtor is in mora in the sense that payment was not made at the specified time. It is not necessary to prove any fault on the part of the debtor. the creditor does not have to prove that the delay is due to the fault of the debtor.
However, the debtor may raise absence of fault as a defence against a claim based on mora debitoris.
Zimmermann and Visser 11 explain that mora debitoris is defined as culpable delay on the part of the debtor in performing an obligation that is due and enforceable, and that remains capable of performance in spite of such delay.
Zimmermann, Visser and Reid 12 also note that in respect of many, if not most forms of breach the absence of fault on the part of the alleged contract-breaker will usually afford a good defence.
In a footnote, they add that [t]his seems to be so in regard to both forms of mora, to prevention of performance and, to a large extent, also to positive malperformance; the position in respect of repudiation is more complex.
Hutchinson and Pretorius 13 define mora debitoris as the culpable failure of the debtor to make timeous performance of a positive obligation that is due and enforceable and still capable of performance in spite of such failure.
They add 14 that [t]he delay must be due to the fault of the debtor or of persons for whom he or she is responsible. … The onus is apparently on the debtor to show that the delay was not due to his or her fault. element of mora debitoris, or whether he merely reiterates the view that the creditor does not have to prove that the delay is due to the fault of the debtor while the debtor could still raise absence of fault as a defence.
Kerr 16 indicates in this regard that failure to perform at the time when, or during the period within which, performance is due is, in the absence of a lawful excuse, a breach of contract because it is failure to do what one has contracted to do and defines 17 mora debitoris as delay in performance, without lawful excuse, by the debtor; and the "debtor" is the party on whom the primary obligation to perform rests.
He does not explain what exactly would constitute a lawful excuse. Kerr does mention in a footnote, though, that "the point of view that fault may be a requirement is not supported". 18 However, this statement is made in respect of mora creditoris and not mora debitoris. Kerr 19 seems to view mora as a "breach of the time factor for performance" 20 and apparently views mora debitoris and mora creditoris as If the performance amounts to payment of a liquidated debt, interest is payable from the date on which the letter of demand is received or the date on which summons is served. 22 The judgement in Scoin Trading (Pty) Ltd v Bernstein 23 seems to be at odds with most of the literature on the law of contract, and there is apparently also a difference 16  cites 43 deal with instances of supervening impossibility, 44 the perpetuation of an obligation 45 and the curing of mora debitoris by subsequently tendering performance. 46 Again, the cited passages do not provide any support for the contention that fault was an element of mora debitoris in Roman law.
Buckland 47 indicates that failure to discharge a legal obligation had to be wilful to constitute mora and cites a passage of Pomponius 48 in this regard. In the passage, Pomponius indicates that a debtor who is prevented from delivering performance when the object of performance is lost due to some wilful act by the debtor shall bear the loss. 49 This is clearly a reference to another form of breachrendering performance impossibleand not to mora debitoris, so that Buckland's conclusion with regard to fault as an element of mora debitoris in Roman law is invalid. 50 Interestingly, Kaser 51 explains that in the case of mora creditoris the failure of performance had to be due to the creditor's conduct ...; but he was in default, even if he was innocently unable to accept performance or to collect the object of the performance.
Since both mora debitoris and mora creditoris relate to delay of performance and both constitute negative malperformance, it would have been strange indeed if the creditor was held to adhere strictly to the contract, while the debtor was liable only for intentional breach. It was an accepted principle of Roman law that a debtor was considered to be in mora from the very moment when he delayed payment, and this rule applied in respect of all bona fide contracts. 52 Paul 53 explained that a debtor was in mora if he did not deliver performance to the creditor or to someone directed to receive performance on behalf of the creditor. Ulpian 54 indicated that an action could be instituted as soon as the promisor was in default, as the time fixed for performance of the obligation had elapsed. Marcianus 55 stated that interest became due through mora and Ulpian added 56 that interest was calculated from the date of default. 57 None of them noted any further requirements, such as fault on the part of the debtor, that had to be satisfied before a debtor would be in mora and therefore liable for mora interest. 58 In fact, there is some indication that fault was not an element of mora debitoris in Roman law. Proculus 59 explained that where it was stipulated that a penalty would apply if the debtor did not perform by a specified date, the debtor who failed to perform by that date would be in mora and therefore liable for payment of the penalty, even if it was clear that the work could not be completed on time and even if the stipulator allowed an extension of the time for performance. The mere fact that the debtor failed to perform by the stipulated date constituted mora.
Ulpian 60 warned, though, that not every delay in performance amounted to mora.
Where a debtor required some friends or his sureties to be present at the time when the debt was paid, the debtor was not in mora if payment was postponed as a result.
The presence of the friends or sureties was probably required to witness the payment and may have fulfilled a function similar to the function of a receipt in modern commerce. 61 If the debtor intended to raise some lawful exception, any delay occasioned similarly did not amount to mora. 62 If the creditor caused the delay the debtor was not liable for being in mora. 63 Pomponius 64 suggested that mora occurred only if the debtor was not prevented by hardship from delivering that which he had always been able to deliver. Ulpian 65 shared this view and indicated that a debtor who was suddenly compelled to be absent on public business was not held to be in mora. The same applied where the debtor was held captive by the enemy. 66 Scaevola 67 added that a debtor was not in mora where the creditor waived his claim.
Papinianus 68 also referred to the case where there was no-one to whom the money could be paid after the death of the creditor, so that the debtor was not in mora during that time. In the case of at least some of the excuses dealt with by the various Roman jurists, such as the raising of an exception or the calling of witnesses or sureties, the debtor would intentionally delay performance. As a result, these excuses cannot be said to exclude fault, but rather seem to amount to grounds of justification that would exclude the wrongfulness of the delay.
What becomes apparent if one reads through the various Roman texts dealing with mora debitoris is that none of the Roman jurists explicitly mentioned fault as an element of mora, 69 but there is some indication that fault was not required. 70 Because of this it can be concluded that mora in Roman law was not a culpable default in delivering performance, but rather a wrongful default. Voet 79 indicated that not every delay of performance amounted to mora as some instances of delay could be excused. In this regard Voet essentially reiterated the Roman law along the same lines as those set out by the Roman jurists. He also indicated that delay could be excused where a supervening event (casus interveniens) made timely performance extremely difficult, provided that the difficulty was not attributable to the negligence of the debtor or was not already present at the time when the contract was concluded. 80  As was the case under Roman law, it seems that Roman-Dutch law also viewed mora as a wrongful default rather than a culpable default, so that fault was not an element of mora. The various historical sources of the various legal systems which shaped our modern South African law, and in particular the law of contract and our law relating to breach of contract, therefore do not lend support to the contention that fault is an element of mora debitoris.

Comparative analysis
If there is no solid historical foundation for the contention that fault is an element of mora debitoris, how did the authors of the various textbooks on the law of contract in South Africa come to include it in their respective works? Perhaps the principle was derived from a similar rule in some foreign law relating to breach of contract? Some guidance can then be provided by considering the laws relating to breach of contract in other jurisdictions, which could have influenced our modern law relating to mora debitoris.

Scots law in respect of negative malperformance is essentially based on Roman law
and a debtor is in mora if the debtor wrongfully withholds performance. 86 In

Persimmon Homes Ltd v Bellway Homes Ltd 87 Lord Drummond Young explained 88
that if a party to a contract is unable to perform his obligations, the reason for that failure is irrelevant. In particular, it is immaterial that he is unable to perform because he cannot obtain requisite funds ... Thus if a party who has undertaken to sell an area of land is unable to obtain the land, the reason for the inability is irrelevant; there is still an inability to comply with the ultimatum notice. This can be regarded as an example of the fundamental principle that contractual obligations normally involve strict liability. attributable to the debtor if the debtor is not at fault, nor by law, juristic act or trade practice liable for the delay. 97 At first glance, breach of contract in Dutch law is then based on fault in terms of this provision. But since a contract is a juristic act, a debtor liable to perform an obligation in terms of a contract is generally in terms of that contract liable for any delay in the performance. 98 286(1) of the BGB, the party who relies on the exception must prove that exception.
The burden of proof is therefore reversed and the debtor bears the onus to prove absence of faultit is not necessary for the creditor to prove fault on the part of the defaulting debtor. 107 In addition, article 323 of the BGB provides that, in the case of a reciprocal contract, a creditor may rescind the contract if the debtor does not perform in accordance with the contract and fails to perform after an additional period for performance has been specified. Article 323(6) excludes rescission only if the creditor is solely or predominantly responsible for the circumstances which would allow for rescission, or if the circumstance for which the debtor is not responsible occurs at a time when the creditor has defaulted in acceptance of the performance.
The implication, as Lorenz 108 explains, is that "fault is no prerequisite for terminating a contract if the debtor fails to comply with a duty incumbent upon him under the contract". 109 As a result, the German approach is not a strictly fault-based approach and lies halfway between fault liability and strict liability. 110 Clearly then, it is highly unlikely that the view in terms of which, in the South African law of contract, mora debitoris is the culpable delay of performance by the debtor, is derived from any other major legal system.

South African law
In view of the historical development and comparative analysis set out above, I now return to the various textbooks on the South African law of contract that identify fault as an element of mora debitoris. LAWSA 111 does not refer to any authority to substantiate the view that fault is an element of mora debitoris, and that impairs its credibility in this regard. Another excusatio would be supervening impossibility. 119 In other words, Steyn 120 thinks of culpa not in the strict sense of "negligence" but rather in the broader sense of "blameworthiness". As a result, reliance on Steyn 121  Of the cases they cite, one 131 deals with a contractual term which made delivery subject to "contingencies, unavoidable or beyond our control" so that the question was not one of fault, but rather if delay caused due to war fell within the scope of the clause concerned. Another 132 involved a claim which the plaintiff failed to prove so that there was also no payment due in respect of which the defendant could be in mora debitoris. As a result, the issue of fault did not even arise. However, the third case 133 which they cite is interesting and is worth further elaboration. In