Do you really understand the domicilium clause? | Legal Articles

 

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Do you really understand the domicilium clause?

Domicilium citandi et executandi

Domicilium citandi et executandi is basically the address a person elects for the purpose of receiving all legal notices and processes. 

This applies to all contractual arrangements including the entering of lease agreements, loan agreements and financial agreements etc.

Shepard v Emmerich

On appeal in the Gauteng Local Division, Johannesburg in the matter of Shepard v Emmerich, the validity of the service of a summons at a contractually chosen domicilium citandi et executandi was taken into consideration. 

In this matter, the domicilium clause was contained in an addendum to a sale of business agreement, concluded between the appellant, as the purchaser, and the respondent as the seller. 

In terms of this agreement the seller elected the second floor of its attorneys of record and named a person for such service.

The purchaser issued a summons against seller for payment of a sum of money based on the agreement. The summons was served by the deputy sheriff, which, according to the return of service, and was effected on the seller’s legal representatives by “affixing a copy of the combined summons to the principal door” of the domicilium address.

Strictly speaking, the service, not being effected at the second floor of the domicilium address and not marked for the attention of the named person did not follow the provisions of the domicilium clause in the agreement between the parties

It was further accepted by the court of first instance that prior to the submission of the summons warrant, the law firm moved the office from the address and that the named person resigned from the firm. 

As a consequence, the summons never came to the attention of the seller and judgement by default was subsequently sought and granted.

The seller launched an application for rescission of the default judgement. However, the application was opposed and the court of first instance found that the service was defective. The purchaser appealed the judgement.

The court found that double provision in the domicilium clause provided for service on the second floor which was not complied with. The second requirement was reference to the named person which was also not complied with. 

The requirements for a proper service

It is important to note from the judgement that the court stated that although the firm had moved and the named person had resigned, this was irrelevant as it did not and could not change the requirements for a proper service. 

Had the service been affected in accordance with the domicilium clause, even though the summons did not come to the attention of the seller due to the changed circumstances, it would have constituted proper service.

As a result the appeal was dismissed because the purchaser did not adhere to the provisions of the service as mentioned in the domicilium clause

This case highlights the importance of paying attention to all aspects of the domicilium clause and not merely regarding it as a standard clause. 

It all comes down to the wording used. 

Parties as well as their attorneys should thus study every aspect of the domicilium clause to familiarise themselves with the service processes regarding legal notices and summonses.

Comments are closed for this post, but if you have spotted an error or have additional info that you think should be in this post, feel free to contact us.


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