Roman Law of Obligations: Mora, Delivery, and Suretyship

Posted on May 29, 2024 in Law & Jurisprudence

MORA DEBITORIS AND MORA CREDITORIS

MORA DEBITORIS

It’s an unreasonable delay by the debtor in fulfilling an obligation.

Features:

  • The civil obligation must be valid (not to claim before maturity), due, and overdue.
  • The delay in compliance, whether due to the fault of the debtor.
  • Requirement (interpellatio) led by the creditor to the debtor, not a mandatory requirement but serves as proof that they wanted to pay the debt.

Effects:

  • If the debt is in cash, the debtor is required to pay interest in arrears.
  • Perpetuatio Obligationis: When setting the default, the debtor is liable in any event, even if the thing had to be given to perish or deteriorate by accident.

The debtor’s available purgatio emendatio arrears, which offered full payment of the debt and the creditor has no reason to reject, the delay expires but does not exempt the enforcement of damages and perpetuatio obligationis, the debtor must answer always required, not just the delay but with the fruits that could have generated (profit).

MORA CREDITORIS

It is when the creditor refuses without just cause provision that makes the debtor, i.e., not to receive the money to pay the debt.

You can enter it with the authority to pay interest and also be relieved of fraud to the debtor.

DELIVERY, CONCEPT, AND REQUIREMENTS

Concept

Law of obligations are those institutions where there is a legal bond between two people, implying an obligation of one over the other.

The Obligatio is that legal relationship whereby a person, the creditor, has the right to require another, the Borrower, to give, do, or not do something. A person is personally linked to another by the act of nexum: a person subjects another to normally secure a debt. Later nexum, such association or staff, became patrimonial.

The provision, in short, is the activity to be performed by the debtor for the benefit of the creditor.

The benefit may consist of three types of activities:

  • Dare: Term for any transmission in the technical sense of full ownership or the establishment of a real right.
  • Facer: Term that refers to one who is obligated to the debtor but may also involve the opposite, a “do”.
  • Praestare: Is to assume any warranty or liability. It was also used for activities not included in the diagrams or dare facere.

Requirements for Service:

  • Possibility: It must be possible. A possible benefit to the obligation becomes void. The failure could be physical or legal.
  • Legality: The provision cannot be contrary to law or morality.
  • Determined and capable of determining (determinable):
    • In the event that the benefit is determinable, it must establish clear criteria for determining which can be:
    • Objectives: To objectively true but unknown circumstances by the parties at the time.
    • Subjective: The determination is left to the discretion of a third person.
  • Character heritage: The provision must be valued in money.

BOND OR FIDEIUSSO

One person, the guarantor, undertakes to pay a debt of another in the event that the principal debtor fails to pay come the end.

Is incidental to the principal obligation. The consequences of that is subsidiary are:

  • The guarantor agrees to the same as the principal debtor.
  • The obligation of the bond presupposes the existence of the principal obligation.
  • The guarantor has the same exceptions as the principal debtor.
  • The obligation of the guarantor extinguishes the litigation contestatio lock with the principal debtor.
  • The debtor should not respond and respond without having to sear.

Bail undergoes evolution:

  • The debtor and the guarantor would be on the same plane, and the creditor could choose whom to address. The two parties were in a relationship of solidarity.
  • Benefit for the prosecution of the debtor where the creditor had to go first against the debtor, and only if that charge could not, could go against the guarantor.
  • In classical times, the creditor could choose between the debtor and the guarantor, and the guarantor was a joint debtor.
  • At the time of Justinian was DEBTOR SUBSIDIARY the guarantor, the creditor against the debtor was first, and if not charged, go to the surety by exclusion but must seek first the debtor.
  • If there were several sureties, initially, there was a sense of solidarity between them. Finally, in later times, it was distributed pro rata among them the debt.

SCHOOL BOND

  • Ad promissio: A verbal contract is accessory to another principal by which a person is obliged by the principal debtor. Born of a stipulatio.
    • You can do this by:
    • Sponsio: (Promise sponda = answer =) Just to Roman citizens. It was used to secure obligations that are born in a formal.
    • Fideipromissio: Promise also based on the fides or loyalty but was used for both Romans and non-Roman citizens.
  • Fideiusso: When the guarantor is obliged to declare compliance with the obligation but does not have to promise the same as the principal debtor. Warrants any obligation, not only to those born of a stipulatio. In the end, sponsio and merge Fideiusso.

There are common rules for the administration and fideiusso promissio:

  • The guarantor cannot force more than the principal debtor.
  • The guarantor use exceptions would use the principal debtor.
  • The dissolution of the principal obligation releases the surety.