Advice and Opinion

Why attention to domicilium clause is important

Why are the domicilium citandi et executandi details so important in a contract?

This is an issue that comes up regularly, says Lanice Steward, managing director of Knight Frank Residential SA, and although it is often seen as unnecessary or unimportant, it can mean a great deal and become very relevant if things go wrong while waiting for a transaction to go through or reach completion.

In a recent court case reviewed by Smith Tabata Buchanan Boyes, Shepard v Emmerich, the seller’s chosen domicilium was noted to be the second floor of a specific firm and to a specific person. The firm had, however, relocated by the time the summons was issued, and the sheriff attached the summons to the front door of the building and not at the second floor.

The court held that the summons, which was intended to stop prescription of a claim by the purchaser, was served irregularly. It was not irrelevant that the indicated firm had relocated; and it was the serving of that summons that was irregular because it was not delivered to the contractually agreed address or domicilium and, in addition, the person it was addressed to was no longer at the firm.

It is very important to wisely choose the domicilium put into an agreement of sale, particularly in cases of foreign buyers or sellers choosing a local address at which to have documents delivered, said Steward. While it only becomes necessary if things go wrong, it is still a very necessary and vital detail.

“The question always arises as to where the buyer or seller chooses to have documents delivered, and this should be a place where someone would be there to receive them and will inform you timeously, or you could find yourself in a situation where prescription has not been interrupted and the claim could go ahead. If you are the party serving the summons, do not rely entirely on the sheriff to deliver it in the correct manner (as in the case above). Check on the address details or person it is addressed to yourself,” she advises.