BREACH OF CONTRACT
1. 2. 3. 4. 5. Default of the debtor (Mora Debitoris) Default of the creditor (Mora Creditoris) Positive malperformance Repudiation Prevention of performance (rendering performance impossible)
Default of the debtor (Mora Debitoris)
Any obligation under a contract has a time limit for its performance, be it an agreed fixed period or in the absence thereof a reasonable period. If the debtor neglects or fails to perform timeously, he/she commits breach of contract. Lawyers then say that he/she is in mora and this form of breach of contract is known as mora debitoris (failure of the debtor to perform on time or timeously).
Example: Mr Price Home Procurement Department orders 50 000 Christmas trees from Fairland Xmas Sales Department on 31/10/2012. The buyer informs the supplier that the Christmas trees are to be sold during the month of November up until 25/12/2012 (Christmas). The supplier delivers the Christmas trees on 28/12/2012. The facts clearly reveal that the Christmas trees have no use for Mr Price Home on 28/12/2012, and in these circumstances Mr Price Home will probably be entitled to resile from the contract.
Legal remedies of the creditor in the case of Mora Debitoris include the following: 1. The creditor can demand fulfillment of the contract on the grounds of the content of the contract.
The creditor can cancel the contract in the circumstances set out above. The creditor can claim damages if he/she suffered damage due to the breach and can prove such damage.
Default of the creditor (Mora Creditoris)
Where the cooperation of the creditor is necessary for the fulfillment of the obligations of the debtor, the creditor is guilty of a breach of contract in the form of mora creditoris if he, without justification, delays the fulfillment of the debtor's performance, where performance is tendered.
Example: Mr Price Home Procurement Department orders 50 000 Christmas trees from Fairland Xmas Sales Department...
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