Mora Creditoris

The positive cooperation of the creditor is required in order to enable the debtor to perform
the obligation thus the creditor is obligated to lend their cooperation and a culpable failure to
do so timeously constitutes mora creditoris
If the delay of the creditor is coupled with conduct manifesting an intention not to honour the
contract or specifically, the duty to accept the performance, this is repudiation and if the delay
endures for long enough to render performance by the debtor impossible, it is prevention of
performance
Mora creditoris and mora debitoris cannot coexist in respect of the same obligation

A creditor’s delay in receiving performance exculpates the debtor and prevents mora
debitoris from arising

In a reciprocal contract, a party can be guilty of both

A purchaser delays in taking delivery of the thing and in paying for it after

Requirements
Obligation to make performance
The debtor must be under the obligation to make the performance to the creditor but the debt
need not be enforceable since mora creditoris can occur in respect of a natural obligation
The debt does not need to be due as a debtor is generally entitled to discharge their debt
before the due date
The creditor may refuse to accept performance if the debt is subject to an unfulfilled
suspension condition or to a suspension time term that is set for the benefit of the creditor
Cooperation
The cooperation of the creditor must be necessary for the proper performance by the debtor of
their obligation
There are instances where the positive obligation can be discharged without the cooperation
of the creditor
Tender of performance
A debtor must tender performance to the creditor.
The debtor must take whatever steps towards performance that are possible without the
creditor’s cooperation and thereafter call upon them to give the necessary cooperation

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 The performance tended must be full and perfect otherwise the creditor may reject it without
risking falling into mora
Delay
For a creditor to fall into mora, they must delay in accepting performance
If there is a time fixed in the contract, mora creditoris arises automatically on the default of
the creditor
If there is no fixed time or if the debtor wishes to discharge the performance before the time
stipulated for performance and they are entitled to do so, 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
The delay must be due to the fault of the creditor
Consequences

Cancellation
The debtor may cancel the contract when time is of the essence of the contract in terms of the
agreement or where it has subsequently been made of the essence by means of a notice of
rescission with which the creditor has failed to comply
Damages

Whether the debtor chooses to cancel to uphold the contract, they are entitled to damages for
any loss that they had suffered as a result of the mora
The damages will take the form of costs wasted in having to re-transport goods from the
agreed place of delivery or those incurred in storing merchandise

Damages may also include the loss of profit on the overall transaction where the contract is
cancelled since the debtor is in principle entitled to recover the full compensation based on
the difference

Specific performance
If the debtor chooses to uphold the contract, they may in suitable circumstances obtain an
order of specific performance compelling the creditor to cooperate

Counter-performance
In a reciprocal contract, the creditor’s delay in receiving the debtor’s performance does not
relieve them of their duty to make their own counter-performance

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 It would be wise for the debtor to sue the debtor for counter-performance and this would
compel the creditor to perform on their side and would likely accept the debtor’s performance

The debtor’s right to claim counter-performance is subject to a reduction by the amount that
they save in not having to fully perform their own obligations
Care of article and the supervening impossibility of performance

Mora creditoris alleviates the duty of a debtor to take care of an article that they have to
deliver

The debtor is usually liable for any damages caused to the article by their own negligence

Once the creditor falls into mora, the debtor’s responsibility is limited to intent and gross
negligence

The creditor must henceforth bear the risk of supervening the impossibility of performance
brought about fortuitously or even through the negligence of the debtor

The principle of perpetuatio obligationis applies in reverse

If the debtor’s performance becomes impossible while the creditor is in mora, the
debtor’s obligation is discharged but the creditor remains liable to make counter-
performance unless the impossibility was due to the debtor’s intent or gross negligence

Effect on security

Mora creditoris releases sureties

A debtor would most likely be liable to pay interest on money owned or other compensation
for the use of a thing if they continue to derive benefit from the use of the money or the thing

Discharge of debt
Unless they validly cancel the contract or obtain an order compelling the creditor to
cooperate, it is unclear how the debtor can discharge the debtor without having to wait until
the period of prescription has run or until performance has become impossible

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