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Hi,
when I discribe this concept without mentioning its name,
because as a lay-person I don't know the buzz words, then I see
folks' eyes glaze over - including readers of this forum.
The concept is central to limitation of statutes aka. prescription.
I'm interested in its application to 'freezing' the claim of a running
account. Further claims after a certain date belong to a different
action. Surely ?
Here are some applicable extracts from the legal literature:---
Generally, accrual of a cause of action in tort has been treated differently
from accrual of a cause of action in contract. Machon, 324 Ill. App. 3d at 303.
Most causes of action in tort accrue when the plaintiff suffers injury;
causes of action in contract and causes of action in tort arising out of a
contractual relationship accrue at the time of the breach of the contract.
Machon, 324 Ill. App. 3d at 303.
----
In Canada, the period limited by statute for bringing an action usually begins
on the date of accrual of the cause of action, that is, when all the elements
of civil wrong existed so that a prima facie case can be proved.
Whether the cause of action has accrued is independent of whether a
complainant knows it has accrued or whether the complainant can give
evidence as to the cause of action at that time.
----
This distinction serves to prevent the plaintiff from waiting after a breach of
contract in order to increase his damages. Machon, 324 Ill. App. 3d at 303.
----
Please consider this minimalist hyperthetical case:
1. The supplier's billing system is wrong: over charging by 10%.
2. The corrrect consumption/billing is $10 per period/month.
3. The client with-holds payment after repeated written complaints
and written acknowledgement of the supplier's billing system, in
order to get a court hearing - to expose the supplier's billing system.
Month True Billed Event
==================================
1 10 11
2 20 22
3 30 33 A
4 40 44 B
5 50 55 C
6 60 66
7 70 77 D
8 80 88
9 90 99 E
Q1. Has the client got a bona fide defence for with-holding payment ?
If not, don't bother to read further; but please let me know the
reason(s) for NO bona fide defence and what is his means of redress.
The events labeled in the table are as follows:
A = demand letter from supplier
B = demand letter from lawer
C = summons served on absent client - not received.
D = Default judgment
E = ignorant of the served summons, the client delivers a letter (to
the supplier - not the lawer) with this calculation-table, writing:
"it is NOT about non payment of due debt, in fact I now admit
owing $90, which is more than the $33 claim.
Please accept my calculations or show were they are wrong, so
that I may settle my account."
Q2. If the client had a bona fide defence for with-holding payment
at time 3, has this been removed at time 9, because he admits
owing $90, whereas the claim is for $33 ?
Q3. If at the appeal level the 'justice department' apparently
acknowledges the absurdity of Q2 (ie. that events AFTER the
default judgment [month 9] can justify the default judgment
[month 7]), is the bona fide defence of month 3 lost, since at
summons "commencing action" the client owed $50, which
is more than the claim of $30 ?
Q4. If so how can the summons be decoupled from the lawer's
demand letter, in the sense that the threshold could have
been crossed from event B to event C.
Q5. When is the "date of accrual of the cause of action" ?
Thanks for any answers (also posted to: eas-lab@absamail.co.za)
-- Chris Glur.
PS. I don't see how to make this story shorter.
There will still be those accusing of 'with-holding information'.
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eas-lab@absamail.co.za wrote:
Hi,
when I discribe this concept without
mentioning its name, because as a
lay-person I don't know the buzz words,
then I see folks' eyes glaze over -
including readers of this forum.
The concept is central to limitation of
statutes aka. prescription. I'm interested
in its application to 'freezing' the claim
of a running account. =A0 Further claims
after a certain date belong to a different
action. =A0 =A0 Surely ?
I do not know the statutes in NZ, however, in the US, each State has
it's own variation of the UCC, most subscribe to the definitions in
toto, some make changes regarding definitions of "commencement of date
of accrual",other States differentiate between merchant accounts and
consumer accounts.
Many have varying tolling provisions and exceptions that are individual
to that State,particularly in consumer defaults.
In addition, the UCC differentiates between "book"(running) accounts and
other types of accounts.
AND to add even more complexity, there is often another set of rules of
civil procedure for certain specific types of business accounts,
(usually service industry).
So, the answer is fairly simple -- look up the appropriate rules undr NZ
equivelant UCC for your (Province ?).
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eas-lab@absamail.co.za blurted out
when I discribe this concept without mentioning its name,
because as a lay-person I don't know the buzz words, then I see
folks' eyes glaze over - including readers of this forum.
It's because you don't know what you're talking about, but try to
talk about it using the buzz words you don't know. If you'd just
come right out and ask a specific question without all the
misunderstandings you come up with, you'd get a lot farther.
Please consider this minimalist hyperthetical case:
1. The supplier's billing system is wrong: over charging by 10%.
2. The corrrect consumption/billing is $10 per period/month.
3. The client with-holds payment after repeated written
complaints and written acknowledgement of the supplier's billing
system, in order to get a court hearing - to expose the supplier's
billing system.
Month True Billed Event
==================================
1 10 11
2 20 22
3 30 33 A
4 40 44 B
5 50 55 C
6 60 66
7 70 77 D
8 80 88
9 90 99 E
Q1. Has the client got a bona fide defence for with-holding
payment ? If not, don't bother to read further; but please let
me know the reason(s) for NO bona fide defence and what is his
means of redress.
Well, you give us a lot of information, but not the information that
is important to your question from a legal standpoint.
Does the client withhold *all* payment, or just a portion that it
feels is too much? How does it come to the conclusion it's too
much? What is the supplier's response to their claims? And why in
the world do they continue to do business with someone who
overcharges them?
If they withhold all payment, the answer is probably NO, because
most contract clauses are independent covenants. That is to say
that as long as one party performs, albeit defectively, you are
generally required to do your part, and argue about it later.
Q2. If the client had a bona fide defence for with-holding
payment at time 3, has this been removed at time 9, because he
admits owing $90, whereas the claim is for $33 ?
You started out asking about statute of limitations. But such
limitations are generally in years rather than months. If you think
you're being overcharged, can't get the other party to deal with it
and you don't do anything about it for, for exemple, four years, the
courts will say you've just waited too long without good reason.
It doesn't seem you example has anything to do with that, however.
Q5. When is the "date of accrual of the cause of action" ?
In a contract cause of action it's generally when one party doesn't
do what he said he was going to do. In many cases, though, where
one party has all the facts and the other party has none, courts
will say that the accrual of the cause of action is delayed until
the offended party discovers, or reasonably could have discovered
that there was a breach.
That does not seem to be the issue in your case, however, since the
customer apparently had an idea right from the beginning he was
being overcharged.
PS. I don't see how to make this story shorter.
There will still be those accusing of 'with-holding
information'.
Just ask the specific question. Leave out all of the legle goble-
dy-gook.
Stu
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On Sat, 26 Jul 2003 06:02:18 -0400, eas-la wrote:
Hi,
when I discribe this concept without mentioning its name,
because as a lay-person I don't know the buzz words, then I see folks'
eyes glaze over - including readers of this forum.
The concept is central to limitation of statutes aka. prescription. I'm
interested in its application to 'freezing' the claim of a running
account. Further claims after a certain date belong to a different
action. Surely ?
Here are some applicable extracts from the legal literature:---
Generally, accrual of a cause of action in tort has been treated
differently from accrual of a cause of action in contract. Machon, 324
Ill. App. 3d at 303. Most causes of action in tort accrue when the
plaintiff suffers injury; causes of action in contract and causes of
action in tort arising out of a contractual relationship accrue at the
time of the breach of the contract. Machon, 324 Ill. App. 3d at 303.
----
In Canada, the period limited by statute for bringing an action usually
begins on the date of accrual of the cause of action, that is, when all
the elements of civil wrong existed so that a prima facie case can be
proved. Whether the cause of action has accrued is independent of
whether a complainant knows it has accrued or whether the complainant
can give evidence as to the cause of action at that time. ----
This distinction serves to prevent the plaintiff from waiting after a
breach of contract in order to increase his damages. Machon, 324 Ill.
App. 3d at 303. ----
Please consider this minimalist hyperthetical case: 1. The supplier's
billing system is wrong: over charging by 10%. 2. The corrrect
consumption/billing is $10 per period/month. 3. The client with-holds
payment after repeated written complaints
and written acknowledgement of the supplier's billing system, in
order to get a court hearing - to expose the supplier's billing
system.
What you are describing is a running account. Accounts can be of many
kinds - simple, open, mutual, probably others.
I can sense your frustration here. I even understand it, since I took an
account case to trial earlier this month. I had a judge describe a case
like this as a "million dollar case - you sure wish there was a million
dollars at stake." Unfortunately, there rarely is.
Month True Billed Event
==================================
1 10 11
2 20 22
3 30 33 A
4 40 44 B
5 50 55 C
6 60 66
7 70 77 D
8 80 88
9 90 99 E
Q1. Has the client got a bona fide defence for with-holding payment ? If
not, don't bother to read further; but please let me know the
reason(s) for NO bona fide defence and what is his means of redress.
The events labeled in the table are as follows: A = demand letter from
supplier
B = demand letter from lawer
C = summons served on absent client - not received. D = Default judgment
E = ignorant of the served summons, the client delivers a letter (to the
supplier - not the lawer) with this calculation-table, writing: "it is
NOT about non payment of due debt, in fact I now admit owing $90, which
is more than the $33 claim. Please accept my calculations or show were
they are wrong, so that I may settle my account."
At common law (which I do not think holds in SA), the client has the right
to a cause of action called an accounting. The client can have the court
review the contracts, the billings, the payments, etc. and declare how
much is owed.
As you your events, at common law, A and B are indistinguishable acts. In
the United States, C makes no sense because there is no service if the
summons is not served, thus D should not have occurred.
HOWEVER, I have seen falsified affidavits of service and false defaults.
It happens.
The remedy in the United States is a motion to vacate the default, thus
forcing service again of the summons and complaint.
As to your question, the client has a defense for withholding the part of
the payment the client believes is not owed, i.e. the additional $1 per
month. Not the whole amount.
Q2. If the client had a bona fide defence for with-holding payment at
time 3, has this been removed at time 9, because he admits owing $90,
whereas the claim is for $33 ?
I'm sorry, I don't understand the premises of the question. The client
owes at least $10 per month. There is no dispute of that. The dispute is
the extra $1 per month claimed by the supplier.
Q3. If at the appeal level the 'justice department' apparently
acknowledges the absurdity of Q2 (ie. that events AFTER the default
judgment [month 9] can justify the default judgment [month 7]), is the
bona fide defence of month 3 lost, since at summons "commencing
action" the client owed $50, which
is more than the claim of $30 ?
I'm really lost here.
Q4. If so how can the summons be decoupled from the lawer's
demand letter, in the sense that the threshold could have been crossed
from event B to event C.
The demand letter is irrelevant. In US law, the summons and complaint
give _notice_ of the claim; however, the value of the claim may increase
up to the entry of judgment. The debt is then merged into the judgment;
the old debt no longer exists because it has been replaced by a judgment.
Q5. When is the "date of accrual of the cause of action" ?
The answer is . . .
wait for it . . .
IT DEPENDS!
It depends on the type of contract between the parties and the type of
account they have established by that contract. There is a
well-established and complex body of law about this because businesses
have been inventing new ways of making deals for hundreds of years.
I wish I could give you a better answer, but without knowing the type of
contract client had with supplier, I cannot do any better. Also, keep in
mind, South Africa is a Code country, not a common law country, so the
common law folks (US and Commonwealth) in this group probably cannot help
you much. In addition, every state in the US has passed the Uniform
Commercial Code (uniform only in the United States) that addresses many of
these issues, but probably will not apply to you.
Thanks for any answers (also posted to: eas-lab@absamail.co.za)
-- Chris Glur.
PS. I don't see how to make this story shorter. There will still be
those accusing of 'with-holding information'.
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