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.
