Maria borrowed R2 000 from Sipho. Beatrice and Shaun
signed as sureties for Maria’s liability to Sipho. Beatrice
signed as ‘surety and co-principal debtor’. Maria’s estate
is sequestrated and Sipho claims 2000 from Beatrice in
terms of the contract of suretyship. Which of the
following is correct?
1 Beatrice can raise the defense of excussion and
compel Sipho first to recove3r as much of the
debt as possible from Maria
2 Beatrice can raise the defense of division and
demand that Sipho divide his claim between her
and Shaun
3 Since Maria’s estate has been sequestrated,
Sipho has no remedy.
4 Sipho is entitled to claim the R2000 directly from
Beatrice.
1 Beatrice can raise the defense of excussion and
compel Sipho first to recover as much of the
debt as possible from Maria
The correct answer is 1. Beatrice can raise the defense of excussion and compel Sipho first to recover as much of the debt as possible from Maria.
In the contract of suretyship, when a surety signs as a co-principal debtor, they have the right to raise the defense of excussion. This means that the surety can request that the creditor (Sipho) first attempts to recover the debt from the principal debtor (Maria) before pursuing the surety (Beatrice) for payment.
Therefore, Beatrice can argue that Sipho needs to exhaust all possible means of recovering the debt from Maria before demanding payment from her.
The correct answer is option 1: Beatrice can raise the defense of excussion and compel Sipho first to recover as much of the debt as possible from Maria.
To understand why this is the correct answer, let's break down the terms and concepts involved:
1. Suretyship: In this scenario, Beatrice and Shaun have signed as sureties for Maria's liability to Sipho. A surety is a person who guarantees to pay the debt or fulfill the obligation of another person (the principal debtor) if the debtor fails to do so.
2. Defense of excussion: Excussion is a defense available to a surety in a contract of suretyship. It means that before the surety can be held responsible for the debt, the creditor must first try to recover as much as possible from the principal debtor (Maria, in this case). The surety can compel the creditor (Sipho) to pursue the principal debtor's assets before seeking payment from the surety.
3. Sequestration: Sequestration refers to the situation where Maria's estate (her assets and liabilities) has been placed under formal insolvency proceedings. This typically happens when a person cannot pay their debts and a court-appointed trustee takes control of their assets.
4. Claims and remedies: Sipho, as the creditor, can still seek to recover the debt from either the principal debtor (Maria) or the sureties (Beatrice and Shaun) even if Maria's estate has been sequestrated.
Given these explanations, option 1 is the correct choice because Beatrice, as a surety, can indeed raise the defense of excussion and compel Sipho to recover as much of the debt as possible from Maria before demanding payment from her.