Domicilium citandi et executandi and other riveting stuff

I did some research in the last few days on service of a summons and suretyships (there was a link).  The reason for the research was an application for a rescission of a judgment on the basis that the summons was incorrectly served and further that the basis of the judgment that was ultimately taken, namely a suretyship agreement, was flawed.

Along the way I found myself exploring an area of the law that is surprisingly interesting.  The basis of the rescission application was that the judgment was void because there wasn’t proper service of the summons.  Proper service of a summons is a pre-requisite for the continued proceedings.  If a summons is not properly served then the foundation of that case falls away and you are stuck. 

Our rules of court deal with the various forms of service, one of which is service on a domicilium citandi et executandi.  This address is an address that is specifically and expressly nominated as the address at which a person will receive service of court papers, among other documents.  It is a particularly important type of address as it is possible to serve a summons, for example, on a domicilium address by literally nailing the summons to the door post in certain circumstances.  With other forms of service (for example service on a work address or home address), things are not so easy.  A domicilium clause in an agreement makes the commencement of litigation so much easier as it obviates the need to go and find the defendant to serve on him/her where he/she is where it becomes necessary to serve on the defendant (the rules relating to service of court papers are quite a bit more involved, this is a gross simplification).

The challenge in this particular case is that the summons was served on an address cited as a domicilium address whereas the suretyship agreement that formed the basis of the action did not identify the address as a domicilium address.  As a consequence, service appeared to be somewhat lacking and this undermined the proceedings as a whole.

The bottom line is that if you wish to make provision for a domicilium address in your agreements (suretyship agreements or otherwise), you need to expressly identify the address as being a domicilium address.  It is not sufficient to simply assume that the address is a domicilium address.  An address simply stated as the address of the sureties is really an indication of where they may be when the time comes to sue.  Ultimately the summons must come to the attention of the person sued.  The one exception is a domicilium address (and even there, if the domicilium address is a work address the plaintiff must still establish that the summons actually came to the attention of the defendant).

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Paul

Enthusiast, writer, strategist, web developer, and photographer. Passionate about my wife, Gina and #proudDad.

21 Comments

  1. Are there any legal consequences if the domilium citandi was willfully quoted incorrectly? Example: The plaintiff states a domicilium citandi although he physically vacated that address 13 months before going to court as he had sold the property.

    Your opinion please.

    Regards,

    Harald Sommer

  2. Are there any legal consequences if the domilium citandi was willfully quoted incorrectly? Example: The plaintiff states a domicilium citandi although he physically vacated that address 13 months before going to court as he had sold the property.

    Your opinion please.

    Regards,

    Harald Sommer

  3. Are there any legal consequences if the domilium citandi was willfully quoted incorrectly? Example: The plaintiff states a domicilium citandi although he physically vacated that address 13 months before going to court as he had sold the property.

    Your opinion please.

    Regards,

    Harald Sommer

  4. Are there any legal consequences if the domilium citandi was willfully quoted incorrectly? Example: The plaintiff states a domicilium citandi although he physically vacated that address 13 months before going to court as he had sold the property.

    Your opinion please.

    Regards,

    Harald Sommer

  5. Hi Harald

    I am not too clear on what you mean here. If a person used an address as a domicilium address that the person does not occupy then that person exposes himself to a risk of default judgment.

    If the plaintiff is citing a domicilium address that the defendant no longer occupies then the defendant runs the risk of a default judgment. The defendant should have taken care to give notice of the change of his domicilium address when he vacated the premises.

    If the plaintiff cited a fictitious domicilium address then the plaintiff risks having any subsequent action set aside.

  6. Hi Harald

    I am not too clear on what you mean here. If a person used an address as a domicilium address that the person does not occupy then that person exposes himself to a risk of default judgment.

    If the plaintiff is citing a domicilium address that the defendant no longer occupies then the defendant runs the risk of a default judgment. The defendant should have taken care to give notice of the change of his domicilium address when he vacated the premises.

    If the plaintiff cited a fictitious domicilium address then the plaintiff risks having any subsequent action set aside.

  7. Hi Harald

    I am not too clear on what you mean here. If a person used an address as a domicilium address that the person does not occupy then that person exposes himself to a risk of default judgment.

    If the plaintiff is citing a domicilium address that the defendant no longer occupies then the defendant runs the risk of a default judgment. The defendant should have taken care to give notice of the change of his domicilium address when he vacated the premises.

    If the plaintiff cited a fictitious domicilium address then the plaintiff risks having any subsequent action set aside.

  8. Hi Harald

    I am not too clear on what you mean here. If a person used an address as a domicilium address that the person does not occupy then that person exposes himself to a risk of default judgment.

    If the plaintiff is citing a domicilium address that the defendant no longer occupies then the defendant runs the risk of a default judgment. The defendant should have taken care to give notice of the change of his domicilium address when he vacated the premises.

    If the plaintiff cited a fictitious domicilium address then the plaintiff risks having any subsequent action set aside.

  9. The summons were served at the correct address but the
    defender did not received them.
    Were those summons still proper served?
    Shouldn't the defender sign if he received the summons?

  10. Hi George

    If the summons was properly served on a domicilium address then service is usually good. It is the defendant's responsibility to keep the domicilium up to date.

  11. Hi Paul,
    Thank you for your prompt answer.
    Apparently somebody fixed the summons on the front door
    of the flat, that evening was a powerful storm….
    The defendant never received the summons.
    Were the summons proper served?
    Thank you,
    George Sion

  12. The summons were served at the correct address but the
    defender did not received them.
    Were those summons still proper served?
    Shouldn’t the defender sign if he received the summons?

  13. The summons were served at the correct address but the
    defender did not received them.
    Were those summons still proper served?
    Shouldn’t the defender sign if he received the summons?

  14. The summons were served at the correct address but the
    defender did not received them.
    Were those summons still proper served?
    Shouldn’t the defender sign if he received the summons?

  15. Hi George

    If the summons was properly served on a domicilium address then service is usually good. It is the defendant’s responsibility to keep the domicilium up to date.

  16. Hi George

    If the summons was properly served on a domicilium address then service is usually good. It is the defendant’s responsibility to keep the domicilium up to date.

  17. Hi George

    If the summons was properly served on a domicilium address then service is usually good. It is the defendant’s responsibility to keep the domicilium up to date.

  18. Hi Paul,
    Thank you for your prompt answer.
    Apparently somebody fixed the summons on the front door
    of the flat, that evening was a powerful storm….
    The defendant never received the summons.
    Were the summons proper served?
    Thank you,
    George Sion

  19. Hi Paul,
    Thank you for your prompt answer.
    Apparently somebody fixed the summons on the front door
    of the flat, that evening was a powerful storm….
    The defendant never received the summons.
    Were the summons proper served?
    Thank you,
    George Sion

  20. Hi Paul,
    Thank you for your prompt answer.
    Apparently somebody fixed the summons on the front door
    of the flat, that evening was a powerful storm….
    The defendant never received the summons.
    Were the summons proper served?
    Thank you,
    George Sion

  21. My One Year Contract has been terminated because I moved next door to my initial domicilium citandi et executandi which I shared with a colleague as a sub-tenant who had a lease agreement with the landlord. My company details were on the wall and are still reflected oon the Reception Entrance Board. I also still share the Boardroom with my colleague next door and we are in touch on a daily basis. I have also held meetings with my client at the same domicilium while I occupied my new domicilium. I found that there was no needto notify them that I have moved next door in the same complex and office.

What do you think?

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