What is a domicilium address and what is the importance thereof when contracting?
Domicilium citandi et executandi is the Latin term for the residential address which parties choose for the delivery of any legal notice or document that has to be delivered in terms of a contract entered into.
The importance of the domicilium address is that should any notice or document be given to either party by the other party that the party to whom the document is delivered to, receives such notice or document and is aware of any legal proceedings or notices in terms of the contract that they have entered into.
It is also important to note that should the domicilium address of either party to the contract change, that notice is given in writing to all interested parties to change the domicilium address to the new domicilium address.
Let us take for example a mortgagor that defaults on his bond repayments and the mortgagee (the bank) has to proceed with legal action against the mortgagor. The bank will deliver any notices to the chosen domicilium address specified on the loan agreement and the mortgage bond document itself. If the mortgagor’s domicilium address have changed and no notice was given to the bank, the mortgagor will not receive the notices sent out by the bank and in the case of a summons being issued, the court may grant default judgement against the mortgagor without his knowledge and without the mortgagor even being aware of such default judgement being taken against him.
Notices served on the domicilium address is considered sufficient notice that the person has received the notice and the person cannot use the excuse that he did not receive the notice because he does not reside at the domicilium address anymore. The onus is on the mortgagor to advise the bank of any change in his domicilium address.
Similarly, when parties for instance enter into a sale agreement, there will be a specific clause in the sale agreement relating to the domicilium address and both parties must choose their domicilium address where they want to receive notices or documents should same be required.
It is therefore imperative that one understands the effect of choosing a domicilium address. Delivery of a legal notice or document to the domicilium address is considered sufficient for having received legal notices or documents.
Contracting parties should carefully choose their domicilium address and always remember that a domicilium address can never be a postal address or even the address of vacant land. The domicilium address must always be a physical address.
It goes without saying that a person must therefore choose his domicilium address wisely. If you know that you are absent from your chosen domicilium address from time to time, you should ask the person who is looking after the property on your behalf to advise you should any notice or document be delivered or served on the domicilium address. You should request such person to send you any notice or document delivered to the said domicilium address to your e-mail address or even fax the notice or document to you.
The implications of not providing your chosen domicilium address or failing to give written notice of the change of your domicilium address can have an adverse effect on you and more often than not it is too late for you to react to a notice or document served on your chosen domicilium address and it will often be very expensive to reverse the judgement given against you.
In the case of a director of a company for instance signing surety on behalf of the company, the registered physical address of the company may not necessarily be the chosen domicilium address of the company and the signing official should therefore carefully opt if he wants to use the registered address of the company or his own residential address as the domicilium address for delivery of notices or documents on behalf of the company. Choosing a proper and correct domicilium address will ensure that one always knows if there are notices or documents served on the domicilium address and it will ensure that one has the opportunity to respond to such notices or documents served on the domicilium address.
Article by Nanette Odendaal
