DO YOU SEE THESE EXCEPTIONS IN BOND DOCUMENTS AND CONTRACTS AND WONDER WHAT THEY MEAN?
These are defences which can be raised by a debtor or defendant against a claim to repay a debt. They are inserted in contracts or credit agreements precisely to prevent the debtor or defendant from relying on them. By signing a contract which contains these exceptions the debtor or defendant renounces the right to rely on them later should the debt need to be recovered.
These exceptions are:-
- Non numeratae pecuniae
This is an exception which may be taken by the debtor on the grounds that, though he has signed an acknowledgement of debt, the amount thereof was not paid over. The renunciation of this exception puts the burden of proof on the debtor to prove that he did not receive the money.
- Non causa dibiti
This is an exception taken to the effect that there is no causa or reason for the debt. Renunciation of this exception places the onus on the debtor to prove that the debt does not exist.
- Revision of accounts, errors of calculation (errori calculi) and no value received
These three exceptions are usually taken together and are used where there is an element of bookkeeping or accountancy. The effect of this renunciation is that the burden of proof is placed on the debtor to prove that an error in calculation exists and that the outstanding balance is faulty.
- De duobus vel pluribus reis debendi
According to this exception two or more persons who are jointly debtor are each liable for their proportional share of the debt. When this benefit is renounced, it makes two or more debtors jointly and severally liable for the debt.
- Beneficium ordini seu excussionis
This is an exception open to a surety by which he can compel the creditor to proceed against the principal debtor first and obtain all he can from such debtor’s estate before proceeding against the surety. The renunciation has the effect of permitting the creditor to proceed against the surety before acting against the principal debtor. In other words, the surety is no longer entitled to force the creditor to take action against the principal debtor first.
- Beneficium divisionis
This exception provides that the liability under a suretyship must be apportioned among the sureties and each surety cannot be sued for more than his pro-rata share. The renunciation has the effect of permitting the creditor to sue one of the sureties alone without reference to the others and to claim the whole amount of the debt from him.
Article by Nanette Odendaal
