DOMICILIUM CITANDI ET EXECUTANDI
In all sale agreements and most contracts (hopefully) the contracting parties must indicate their physical address for delivery of notices and legal documents. The legal and Latin term is commonly known as domicilium citandi et executandi. It is each contracting party’s responsibility to notify the other party of a change of address in the event of such change and failure to do so can have severe consequences on the defaulting party.
Case in point: Shepard v Emmerich (A5066/2013) [2014] ZAGPJHC 120 (13 June 2014)
In this case the seller’s chosen domicilium was indicated as the 2nd floor of a specific firm and to a specific person. As the firm had relocated at the time the summons was issued, the sheriff attached the summons to the front door of the building and not at the 2nd floor. The court held that the summons, which was intended to stop prescription of a claim by the purchaser, was served irregularly and therefore prescription was not interrupted. It was not relevant that the indicated firm had relocated; service was irregular because it did not comply with the contractually agreed domicilium.
The facts can be summarised as follows:
Shepard bought a business from Emmerich and stipulated her domicilium address as: ‘Routledge Modise Moss Morris, 2 Pybus Road, Sandton (Marked for D. Janks 2nd floor). Shepard issued summons against Emmerich for payment of R123,867.06 in terms of the agreement. The summons was served by the sheriff, which was effected on the address as provided in the agreement by ‘affixing a copy of the combined summons to the principal door’ of the domicilium address. The reason was that, at the time, the firm was no longer at that address as they had moved offices. The summons was therefore affixed to the principal door and not delivered to the second floor. It was also not marked for the attention of Mr D Janks, who was no longer practicing at the said firm. Strictly therefore there was no compliance with the two requirements of the existing domicilium clause.
The summons accordingly never came to the attention of Emmerich and default judgment was sought and granted. A writ of execution was authorised and served on Emmerich and this was the first time that she received an intimation of the pending action. Pursuant thereto Emmerich successfully launched an application for rescission of the default judgment. The matter proceeded to trial and the parties asked the court to adjudicate on the preliminary question whether the service of the summons was proper. This was crucial because if in the affirmative, Shepard’s summons successfully interrupted prescription. If not, Emmerich could raise prescription as a defence against Shephard’s claim.
The trial court found that the service of the summons was defective, that prescription had not been interrupted and accordingly dismissed Shepard’s claim. Shepard appealed.
HELD:
• The domicilium clause contained a double provision which required:
(i) service on the second floor of the attorneys’ office, which was not adhered to, and
(ii) service upon a Mr Janks (who had resigned) which had also not been complied with.
• Clearly therefore the service of the summons was irregular:
(i) The fact that the office moved or that Mr Janks was no longer with the firm of attorneys was of no consequence.
(ii) The only relevant fact was that the requirements for a proper service, as contractually agreed to by the parties, was not met.
• The significance of the changed circumstances was as follows:
Had the service been effected in accordance with the domicilium clause, even though the summons did not come to the attention of Emmerich due to the changed circumstances, it would have constituted good service.
The finding of the court a quo (the court of first instance) was therefore correct and the appeal was dismissed.
It is therefore in the interest of all parties to notify their contracting counterparts of their change in domicilium address to avoid similar scenarios.
Wietz Viljoen, WVA INC.
This article is for general information purposes and is aimed at advising the public. It should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.
