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The German civil code (BGB) establishes that the creditor defaults when he delays his acceptance, regardless of the question of fault. Since the creditor is still obliged to pay the debtor, the creditor only harms himself by not accepting performance. On the other hand, it is stated in the special section of the BGB that the emptor is not entitled to reject performance. With regard to the question as to whether such an obligation was known in classical Roman law, the source material remains ambiguous. But the relevant fragments can be systematized to the extent that they aim to balance the conflicting interests of creditor and debtor. In comparing the solution according to classical Roman law with the legal position of the BGB, the interplay between the provision on creditor’s delay and the emptor’s duty to accept performance result in a legal solution which is quite similar to the balance of interests found in classical ­Roman law even though it is based on a different legal ideology.



  • 5

     Vgl. B. WindscheidLehrbuch des Pandektenrechts7. Aufl. Stuttgart 1891 S. 279.

  • 63

     Vgl. M. KaserDas Römische Privatrecht1. Abschnitt München 1971 S. 551 Fn. 59; Honsell Quod interest (supra n. 62) S. 171.

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