Abstract
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.[1] 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.[2][1] Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1; West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173; Fluxman v Brittain 1941 AD 273; Microuticos v Swart 1949 3 SA 715 (A); Linton v Corser 1952 3 SA 685 (A); Union Government v Jackson 1956 2 SA 398 (A); Standard Finance Corporation of South Africa Ltd v Langeberg Ko-operasie Bpk 1967 4 SA 686 (A); Nel v Cloete 1972 2 SA 150 (A); Van der Merwe v Reynolds 1972 3 SA 740 (A); Ver Elst v Sabena Belgian World Airlines 1983 3 SA 637 (A); Chrysafis v Katsapas 1988 4 SA 818 (A).[2] Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA).
Highlights
Parties generally enter into contractual relations with the sincere intention to fulfil all the obligations created in terms of their contract
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, do not lend support to the contention that fault is an element of mora debitoris
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 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
Summary
Parties generally enter into contractual relations with the sincere intention to fulfil all the obligations created in 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 arises whether or not a debtor would 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.. The respondent argued that the passing away of the deceased rendered performance impossible
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