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p768 Mora

Article by George Long, M.A., Fellow of Trinity College
on p768 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

MORA. The fact of an obligatio not being discharged at the time when it is due, is followed by important consequences, which either may depend on the nature of the contract, or may depend on rules of positive law. After such delay the creditor is empowered to use all legal means to obtain satisfaction for his demand: he may bring his action against his debtor or against those who have become securities for him, and, in the case of a pledge, he may sell the thing and pay himself out of the proceeds of the sale. For particular cases there are particular provisions: for instance, the purchaser of a thing after receiving it, must pay interest on the purchase money, if there is a delay in paying it after the time fixed for payment (Dig. 19 tit. 1 s.13 §20). The rule is the same as to debt due to the Fiscus, if they are not paid when they are due. If a colonus was behind in payment of his rent for two years, the owner (locator) might eject him (Dig. 19 tit. 2 s.54 §1): and a man lost the right to his emphyteusis, if he delayed the payment of what was due (canon) for three years.

These were cases of delay in which there was simply a non-fulfilment of the obligatio at the proper time; and the term Mora is sometimes applied to such cases. But that which is properly Mora is when there is delay on the part of him who owes a duty, and culpa can be imputed to him. Some modern writers are of opinion that all delay in a person discharging an obligatio is Mora, except there be some impediment which is created by causes beyond the debtor's control. But there are many reasons for the opinion that Mora in its proper sense always implied some culpa on the part of the debtor. This is proved by the general rule as to the necessity of interpellatio or demand of the creditor (si interpellatus opportuno loco non solverit, quod apud judicem examinabitur); by the rules about excusationes a mora, which only have a meaning on the supposition that real mora is not always to be imputed to a man, though there may be delay in the discharge of an obligatio. That this is the true meaning of Mora is also shown by the terms used with reference to it (per eum stetit, per eum factum est quominus, &c.). This view is confirmed also by the rule that in every case of Mora the particular circumstances are to be considered, a rule which plainly implies that the bare fact of delay is not necessary to constitute Mora. In a passage of Papinian (Dig. 12 tit. 1 s.5) the doctrine that bare delay does not constitute legal Mora is clearly expressed.

When Mora could be legally imputed to a man, he was liable to loss in many cases when he otherwise would not be liable: as if a man was bound to give a thing and it was lost or destroyed, he was to bear the loss, if the fault was his, that is, if real culpose mora could be imputed to him (Dig. 12 tit. 1 s.5). In cases where a man did not pay money when he ought, he was liable to pay interest if legal Mora could be imputed to him. In bonae fidei contractus interest (usurae) was due if there was legal mora. (Vangerow, Pandekten, &c. III. p188; Thibaut, System, &c. I. § 96, &c.; Dig. 22 tit. 1.)


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