David’s Snippets (A collection of legal articles taken from real life in a conveyancing office.)

This week a local lawyer talks mora clause, which is often found tucked away somewhere in immovable property sale agreements.

April 9, 2019

Submitted 2 minutes read

Mora – Latin – meaning ‘culpable delay’.

The mora clause is often found tucked away somewhere in immovable property sale agreements. It attracts little attention normally. That’s because its value only comes into play when things go wrong.

Often misunderstood in property sales, is the express or implied term that the parties must cooperate with the appointed conveyancer, towards achieving transfer – by a certain date. I always encourage agents to insert a target date in their sale agreements, as this removes doubt about an important issue. You see, if no date is stipulated, then the proverbial ‘reasonable time’ rule applies. That of course, can be a debatable subject, influenced largely by the industry accepted benchmark of two months for a transfer. So don’t leave it to speculation. Try to get agreement at the beginning of the deal, about when the parties would like the transfer to be registered. Conveyancers enjoy that certainty so they can adjust the work program accordingly.

Point of the matter, the moment one or other of the parties fails to do something required to keep the conveyancing programme on track, the conveyancer should immediately look to the mora clause. Little else in a sales contract evokes such radical emotional responses! Things really get moving when the delaying party receives an e-mail notice from the conveyancer setting out the cause of the delay and notifying that penalty interest will commences to run at Rx per day until the delay is removed.

The power of mora is to be found in the underlying psychology. Nobody likes to be blamed for delay, let alone be punished with a penalty for it. So conveyancers should be prepared for a radical response and be ready to calm things down with reasoned action steps to fix the problem. I do not recommend it as an instrument of punishment; rather an accelerator of process. That’s the better approach. Seldom (if ever) are mora incidents followed by actual money claims. Most times, the harsh exchanges are followed by quick resolution and relief that matters are back on track. That is, after all, what everyone involved requires and why I regard it as an effective conveyancing tool, albeit underutilised.

Hope your week is rolling out well!

Regards

David

www.voattorneys.co.za