How is it possible that someone can obtain judgment against me, without my knowledge of any summons issued against me or a court date to state my side of the story?
Well, in our law this could happen if you agreed to a domicilium address without notifying other parties about a change therein when you move away from said address.
What is domicilium citandi et executandi?
Domicilium citandi et executandi (hereinafter, “domicilium address”) is a Latin term that means “house for being summoned and executed upon.” In South African law, it refers to the address that a person nominates in a contract as the address where they will receive all legal notices and processes. This address can be a physical address, such as a home or business address, or it can be an email address.
Where did the concept of a domicilium address originate?
The concept of a domicilium address originated in Roman law. In Roman law, a person’s domicile address was the place where they were a resident for legal purposes. This meant that all legal notices and processes had to be served at the person’s domicile.
How is a domicilium address used in today’s contracts?
A domicilium address is commonly used in today’s contracts. This is because it allows parties to a contract to specify the address where they want to receive all legal notices and processes. This can be helpful in ensuring that parties are aware of any legal proceedings that are being brought against them.
What are the pitfalls of a domicilium address?
There are a few potential pitfalls associated with a domicilium address. One pitfall is that if a person moves and does not notify the other party to the contract of their new address, they may not receive legal notices or processes that are served at their old address. This could result in a default judgment being entered against them.
Another pitfall is that if a person’s domicilium address is a physical address, and that address becomes inaccessible, they may not be able to receive legal notices or processes that are served at that address. This could also result in a default judgment being entered against them.
In the matter of Amcoal Colleries Ltd v Truter 1990 (1) SA 1 (A), the Supreme Court of Appeal held that a person’s domicilium citandi et executandi can be chosen in a contract, and that service of process at that address is good service, even if the person is not present at the time.
How can you avoid judgment against you when the domicilium address is no longer a place you can access?
Firstly, you should make sure that you notify the other party to the contract of your new address as soon as possible. Secondly, you should keep track of your mail and make sure that you open all of it, even if it is addressed to your old address. Thirdly, you should check your credit report regularly to make sure that there are no judgments against you that you are unaware of.
Example:
Suppose John signs a lease agreement with a landlord. The lease agreement includes a clause that states that John’s domicilium address is the address of the premises. John then moves from the premises to another place without notifying the landlord of his new address.
If the landlord then sues John for breach of the lease, the landlord can serve the summons on John at the address of the premises, being the domicilium address. Even if John does not receive the summons, he will still be bound by the judgment if he does not respond to the lawsuit.
Domicilium citandi et executandi is an important concept in South African law and it is important to understand the implications thereof before you sign a contract. If you are unsure about what your domicilium address is, you can consult with an attorney.
This article is a general information sheet and 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. Errors and omissions excepted (E&OE)