THE IMPORTANCE OF HAVING AND COMPLYING WITH A DOMICILIUM CLAUSE

Written contracts almost invariably contain a clause which provides for addresses at which parties to the contract will accept notices from the other parties. This clause is called the “domicilium clause.” It is important for the future relationship between the contracting parties that they abide by what is contained in the domicilium clause, particularly insofar as service of legal documents is concerned.

Often, natural persons will sign as a surety for a business. If they are intimately involved with the activities of the business (for example, in the case of a director) they will often place as their own domicilium address as that of the business. However, should the business address change and no notice is given to the other party, and that party should serve a legal process such as a Summons at the domicilium address, the surety exposes themselves to judgment being obtained against them without even knowing of the existence of the Summons. It is therefore vitally important to pay attention to the domicilium clause in any contract.

How does service at the address need to be effected?

How (and by whom) service needs to be effected depends on the nature of the documents to be served.

By whom:

Day-to-day business documents:
• It is advisable that notices and documents sent in the ordinary course of business be sent via registered mail, or delivered by hand, accompanied by an acknowledgement of receipt to be signed by the recipient.

Documents which initiate legal proceedings (summons, notice of motion)
• These documents must be served by a sheriff of the court in whose jurisdiction the recipient operates.

How:

This will depend on how much detail is given in the domicilium clause. Where a physical address is given, it will be sufficient for the mailman or sheriff to affix the notice to the building, where for example there is no answer at the door, or where the occupants of the building refuse to accept service.

Domicilium clauses in which a specific method of service is stipulated should by strictly complied with. Thus, where a specific office in an office park is stipulated in the clause, simply leaving a document at the front office of the office park will be insufficient.

However, where the domicilium address refers only to an office park (and not the specific office) simply leaving the document with a person working at the office park will constitute good service. It is thus important to include enough detail in the clause to ensure that documents are actually delivered to the recipient.

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