Roma Hukukunda ve Karşılaştırmalı Hukukta alacaklının temerrüdü (Mora Creditoris)

Abstract

Mora creditoris, as in many institutions in law of obligations, takes its rootsoriginally from Roman Law. The mora creditoris was handeled together with themora debitoris and both institutions were called as the twin of each other. Bothkinds of the delays in Roman Law were based on fault and consequently wereregulated as breach of contract. The institution of mora creditoris, as accepted inRoman Law, was based on fault and then applied in a way that contains nocontradiction within itself.However, this institution in law of Pandekt was redefined through taking itout of the sphere of the theory of fault. The main thought yielding this result wasthat; the acceptance of the performance on the part of the creditoris was only aright but not a matter of creating debt. According to this consideration, thecreditoris who cannot be supposed to be liable to the acceptance of theperformance cannot be considered of any faults.This view has formed a new and different mora creditoris institution. Thisnew institution has been accepted by those who prepared BGB as well and thanksto this it has been placed in civil law in Germany and spreaded to other Europeancountries from there.This institution as accepted in Turkish-Swiss and German law, survives asa form consisting of a repetition of Roman Law, apart from the fault, in terms ofits conditions and legal resultsIn the first chapter of this study, the conceptual outline of the institution ofthe mora creditoris appeared in Roman Law is to be marked and whether thischange is appropriate or not is to be studied.In the second chapter of the study, the required conditions for the existenceof the mora creditoris are to be studied in detail, within the terms of the existinglegal arrangement.In the third chapter, the legal results of the mora creditoris are to be studiedbasically. In addition to this, other performance barriers to which the moracreditoris provisions are to be applied and the ending of the mora creditoris are tobe studied without detail.In this study, while examining the conditions and provisions of the moracreditoris, Actio, Turkish-Swiss law and German law are to be handledpredominantly. Furthermore, laws which espouse a distinct approach such asFrench law and British law are to be discussed as well. Besides, within theframework of the efforts to create a common law under the relevant topics, Theprinciples of European conventional law, Unidroit Principles and Convention onInternational Sale of Goods (CISG) are tried to be discussed to the extentconcerned.