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When does a claim prescribe?
01 July 2020  | Charné Barnes
 

Prescription of claims is when a debt for example or an obligation to pay money, is extinguished after a period of time.

In plain language it means that a person who is indebted to another will not be liable to pay such debt after a certain time has passed, because South Africa has different laws which specify prescription periods.

The Prescription Act says that contractual and delictual debts extinguish after three years from the date when it became payable (due).

Normally one of the first questions your attorney will ask you is when your cause of action arose so that they can determine whether your claim has prescribed. If it is ascertained that your claim has prescribed, it means that you have no legal remedy available.

Prescription will start running as soon as the debtor has informed the creditor of his debt and once the creditor has knowledge of his debt, the prescription will then start running on the date that the creditor gains knowledge.

If a debt is related to trafficking in persons, rape and sexual exploitation of children, the prescription period will not run during a period where the creditor cannot institute his/her claim due to his/her mental or psychological condition.

The prescription period is only delayed by the following restrictions: where the creditor is a minor, insane or under curatorship, where the debtor is not in South Africa, where the creditor and the debtor are married to each other, where the creditor and the debtor are partners and the debt arose from a partnership agreement, where the debt is an object of a dispute in an arbitration or where the executor in a deceased estate has not yet been appointed.

 

 
 
 
Tags: Debt