Marume and Furidzo Legal Practitioners
byLegal Advice

An acknowledgment of debt is executed by the debtor in favour of the creditor wherein he confirms the existence of a debt of a stated amount. It is therefore a formal recognition of a debt by the debtor. It matters not that the document is not titled or worded ‘acknowledgment of debt’, if the effect of the contents is to acknowledge the existence of a debt then it is an acknowledgment of debt.

Having an acknowledgement of debt executed by the debtor has a number of advantages. First, an acknowledgement of debt has the effect of interrupting the running of prescription. Second, it is competent to sue a debtor on his admission of liability as set out in an acknowledgement of debt without founding the action on the original transaction giving rise to that acknowledgement (see Barend Van Wyk v Tarcon (Pvt) Ltd SC49/14). Third, once the authenticity of the acknowledgement of debt is proved, the onus of proving that the acknowledgement of debt was signed through duress or some other similar defence rests on the party making the allegation. Fourth, an acknowledgement of debt is a liquid document. A liquid document is one which demonstrates by its terms, an unconditional acknowledgment of indebtedness in a fixed or ascertainable amount due to the Plaintiff. Another example is a dishonoured cheque. A holder of a liquid document can expeditiously obtain judgment without necessarily going through a trial which in most cases may be time consuming. To this end he can utilise the summary judgment procedure or the provisional sentence summons.

It is necessary that an acknowledgement of debt be drafted with clarity and precision so that it indeed becomes a liquid document and will not be easily challenged in court. It is also important to put clauses in which the debtor renounces the legal exceptions non numeratae pecuniae and non causa debiti as this has the effect of shifting the onus to the debtor. There is therefore no doubt that a creditor would need a legal practitioner to draft such an important document.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2019

4 Comments

  1. Blessing Kabuta

    What am I suppose to do if I signed the Acknowledgement of debt under Durres and the Attorney’s has already send me a letter due to failing to pay the debt because am not admitting that I owe the one claiming to be a creditor money

    Reply

  2. Pamela Mutasa

    I am a mother who takes care of her child alone after an argument with a husband, the husband said, “that the child is not his and does not want to go for a blood test” to see if it is true that he is not the child’s father. After taking care of the child alone for two years, I have decided to apply for the child’s birth certificate because he does not have it yet. Next year he should start going to creche because he is three years old now without any certificate showing that he is a native of Zimbabwe and I decided to give him a certificate with his surname only and not mine. Please help me with travel documents as soon as possible.

    Reply

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