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June 19, 2018

The prescription of debt – must I pay a claim older than 3 years?




A client asked: debt collectors have been phoning and texting me to recover a claim that goes back more than three years. Do I have to pay?

In summary, if you know that the debt is older than three years, never admit anything, sign anything or pay anything. In that way, the claim against you will have lapsed and you won’t have to pay anything.
Creditors sell their Debtor’s Book to Debt Collectors, who will then try to collect the debt. Obviously, they will try to collect more than what they paid for the Debtors’ Book. So, when they call or text consumers, they will try to get them to admit that they owe the money and, preferably, get them to make a small payment. The reason for this is that any express or tacit acknowledgement of liability or payment by the debtor, interrupts the running of prescription.
Debt
The Prescription Act 68 of 1969 provides that a debt shall be extinguished by prescription after three years.

Interruption of prescription by acknowledgement of liability
(1) The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.
(2) If the running of prescription is interrupted as contemplated in subsection (1), prescription shall commence to run afresh from the day on which the interruption takes place or, if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt, from the date upon which the debt again becomes due.

Judicial interruption of prescription
(1) The running of prescription shall be interrupted by the service on the debtor of any process (any document whereby legal proceedings are commenced) whereby the creditor claims payment of the debt.
(2) Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.
(3) If the running of prescription is interrupted as contemplated in subsection (1) and the debtor acknowledges liability, and the creditor does not prosecute his claim to final judgment, prescription shall commence to run afresh from the day on which the debtor acknowledges liability or, if at the time when the debtor acknowledges liability or at any time thereafter the parties postpone the due date of the debt, from the day upon which the
debt again becomes due.
(4) If the running of prescription is interrupted as contemplated in subsection (1) and the creditor successfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable.


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