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n Tydskrif vir die Suid-Afrikaanse Reg - Sameloop van 'n pactum de non cedendo, sessie in securitatem debiti en retensieregte (deel 2)
Die Suid-Afrikaanse gemenereg verleen in die vorm van die terughoudingsbevoegd-heid 'n magtige wapen in die hand van die skuldeiser teen sy skuldenaar in versuim indien ná die prestasie van die skuldeiser in 'n sinallagmatiese ooreenkoms sy teenparty in versuim bly om sy teenprestasie in die vorm van die ooreengekome vergoeding vir die gelewerde dienste na te kom. Die terughoudingsbevoegdheid is geen reg in die normale sin van die woord nie en kan nie selfstandig as aksiegrond dien nie. Die terughoudingsbevoegdheid vorm as sodanig ook nie 'n vermoënsbelang in die boedel van die retentor as vorderingsreghebbende naas sy vorderingsreg teen sy prestasieskuldenaar nie en verleen om die rede geen selfstandige sekerheidsobjek vir die skuldeisers (soos die bank in casu) van die retentor nie, maar het 'n buitengewoon effektiewe hinderwaarde in die sin dat die retentor met 'n beroep op die terughoudingsbevoegdheid onbepaald kan weier om die sake van die skuldenaar wat hy in sy eksklusiewe beheer het, vry te gee totdat die skuldenaar sy uitstaande prestasieverpligtinge ten volle vereffen het.
Confluence of a pactum de non cedendo, cession in securitatem debiti and a lien
This article addresses the legal problem that may arise when a debtor A who is contractually bound to perform, say, refining work to minerals belonging to C and situated on C's property, is in need of a loan to purchase machinery to do the work on C's minerals at C's premises. The contract between A and C contains a pactum de non cedendo in terms of which A may not, without C's permission, cede his rights in terms of the agreement. A approaches bank B and is required to provide security for the loan which he then provides by ceding his personal right against C (and all his book debt) to the bank using the cession in securitatem debiti construction. (The pitfalls of the loose and inaccurate language normally used in formulating this type of clause are also discussed.) Notwithstanding the clear pactum de non cedendo C is not made aware of the cession. The legal position regarding the implication of the pactum de non cedendo on the competence of A to cede the right is discussed with reference to comparative legal systems and it is found that this clause only binds the parties inter partes and that the right may be validly ceded to a third person. The normal contractual remedies are still at the disposal of C.
As a result of the cession in securitatem debiti, A is no longer the person entitled to the proceeds of the claim against C, but due to the provisions of the agreement between it and the bank, A may act on behalf of the bank in enforcing the right if C falls in arrears. In a normal situation where there is no talk of a cession in securitatem debiti, if C falls in arrears in our current example, A would have been entitled to hold onto the goods that he worked on and have exercised a right of retention/lien if C wanted to claim back his assets without performing in terms of the reciprocal contract. The retentor is always in a position, if he is in possession of the goods and not merely holding it, to ward off the rei vindicatio of the owner.
In our current scenario where A is working on C's material but where B is the cessionary, A is merely the holder of the assets and cannot exercise a right of retention if C wanted to claim his assets without first reimbursing A. If C is in arrears, B is the person who is entitled to enforce the personal right, because in terms of the cession, the right vests in its estate. If, however, the pledge construction for cession in securitatem debiti were to be used, B may not enforce the right until A falls into arrears - with reference to A's liability against B as his credit provider - and this has not happened yet. The pledgee in the normal circumstances may not execute on the pledged article until the debt so secured is not paid when it becomes due. A may also not act in his own name against C, because he does not have the competency to do so - that competency was transferred to B. A may also not act as representative of B for purposes of a lien, because B did not do any work in connection with C's material, thus blocking the vesting of a right of retention for B. Unless B re-cedes the personal right against C (and loses his security with regard to his claim against A as the bank's debtor in the process) to A (enabling A to become possessor and thus entitled to exercise his right of retention), C is able to get away by claiming his assets and refraining from paying.
It is submitted that until legislation is promulgated to bring clarity to the position of debtors and creditors in instances of a cession in securitatem debiti, especially in situations similar to the one referred to where the rights ceded to procure credit are needed to create security by means of a right of retention, there seems to be only one alternative left to the parties to prevent the debtor (C) from removing his assets. The bank (or A in his representative capacity) may use the anti-dissipation interdict (Mareva-type or Knox-D'Arcy interdict) to ensure that the debtor's assets are preserved for the benefit of all the creditors. Where the pledge construction is used, the position remains precarious. Where the out-and-out-cession construction is used it may be to A's benefit to apply for an anti-dissipation interdict in a representative capacity. He has no means of determining whether the bank may decide to act against the debtor C, and neither is he in a position to influence the bank's decision. But by applying for the interdict, he may ensure that the assets are preserved till the competent court has the opportunity to decide on the merits of the different claims regarding those assets.
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