Short notes on:
Legal exceptions– what are those fancy Latin legal phrases and are they allowed?
When entering into a credit agreement the consumer is often faced with an agreement which
contains firstly a great deal of legal jargon and secondly Latin phrases which are unknown to the
consumer. In this article we will briefly discuss some of the Latin legal exceptions that you could
incur. In terms of the National Credit Act Act 34 of 2005, some of the legal exceptions are unlawful
and may not be contained in the agreement
Legal exceptions are remedies which the consumer will have in terms of South African contract law.
These exceptions stem from South African common law and is therefore a part of our contract law.
In essence legal exceptions are remedies which a consumer can call on when a creditor calls up the
consumer in terms of the credit agreement.
In terms of the National Credit Act, Act 34 of 2005, the following common law rights or remedies
may not be waived in a credit agreement: Exceptio non numerate pecuniae, Exceptio non causa
debiti, Exceptio errore calculi. Herewith a brief explanation of what each of these remedies entails:
a) Exceptio non numerate pecuniae
Meaning: amount was never paid over to the debtor even though an acknowledgement of debt
was signed. Thus the burden of proof will be on the creditor to prove that the debtor has received
the money and the creditor has performed in terms of the agreement.
b) Exceptio non causa debiti
Meaning: no reason or cause for the debt. When waived the burden of proof is on the debtor to
provide that there is no cause are reason for the obligation and that the debt has been settled
c) Exceptio errore calculi
Meaning: errors of calculation and revision of account. When renounced the debtor will need to
ensure that the correct amount was received. The debtor will no bel able to dispute the agreed
amount.
© Anye Jansen van Rensburg | SchoemanLaw Inc 2015
t +27 (0) 21 425 5604 f +27 (0) 21 421 8913 e [email protected] w www.schoemanlaw.co.za
Thus in terms of the National Credit Act none of the above legal exceptions may be waived in terms
of the credit agreement. An example of how this will work in practice: A enters into a credit agreement
with B for a loan. B does not pay over the amount loaned to A, but claims the repayment from A. A
will then be able to use the exceptio non numerate pecuniae remedy against B and B will have to
prove that the amount was in fact paid over to A. If A did not have this remedy, i.e if it was waived
in the agreement, it would have been presumed that B had paid over the money and A would have
to prove that it was not.
Conclusion
As a consumer it is important to know your rights in terms of the National Credit Act, especially when
it comes to ensuring that there are no clauses in the agreement which are unlawful. We at
Schoemanlaw are experts in credit agreement and can assist you to make sense of the agreement.
Ensure that you know what the credit agreement entails before signing it!
© Anye Jansen van Rensburg | SchoemanLaw Inc 2015
t +27 (0) 21 425 5604 f +27 (0) 21 421 8913 e [email protected] w www.schoemanlaw.co.za