BARREL ENGINEERING & FOUNDERS (PVT) LTD v BITUMEN CONSTRUCTION SERVICES (PVT) LTD 2016 (2) ZLR 864 (H)

Flynote

Contract: " performance " time for " position when time for performance not agreed between the parties " need for defaulting party to be placed in mora by demand being made specifying time for performance

Prescription: " interruption of " acknowledgment of debt " tacit acknowledgment made when seeking indulgence " prescription thereby interrupted

Headnote

The defendant, when called upon to pay a debt owed to the plaintiff, sought and was more than once granted indulgences to pay. It did not deny liability. When the plaintiff brought the present action, the defendant claimed that the debt had prescribed. The plaintiff had also alleged that the defendant was liable on demand for payment being made, the contract not having been specific in this regard. Held, that the defendant's tacit acknowledgment of liability interrupted the period of prescription. The request for indulgences and the granting of the same interrupted the prescriptive period. The interruption causedthe period of prescription to commence to run afresh.

Held, further, that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time.e must know that he has to perform. This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or interpellatio, may be made either judicially, by means of a summons, or extra-judicially, by means of a letter of demand, or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance.