Prescription of Debt.

In layman terms and with regards to prescription vis a vis debt, prescription refers to the extinguishing of a debt due to the passage of time. The Prescription Act (chapter 8:11) requires one to raise prescription in pleadings or papers of record generally. When one is arguing prescription they should recognize that it begins to run on a date the debt becomes due and payable1. The Act states that a debt and or its subsidiary become extinct after a period stated by legislation governing the debt in question or as stated in a binding document between the parties. This does not mean that if a debtor, in ignorance or good faith pays the debt after it has prescribed or commits to pay, the act is void. A payment made after prescription has run its full course or a commitment to pay thereof is a valid payment of debt or commitment to pay the debt respectively.

  1. NUMBER OF YEARS IT TAKES FOR SPECIFIC DEBTS TO PRESCRIBE.
    In the absence of specific legislation dealing with the debt in question, the Act guides in the following way:
    1.1. It takes 30 years for the following types of debts to prescribe2:
    i. a debt secured by mortgage bond;
    ii. a judgment debt;
    iii. a debt in respect of taxation imposed or levied by or under any enactment;
    iv. a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances;
    1.2. While it takes 15 years3 for the debts that arise in from the following categories to extinguish:
    i. the case of a debt owed to the State and arising out of an advance, or
    ii. loan of money by the state, or
    iii. a sale or lease of land by the State to the debtor unless a longer period applies in respect of the debt concerned.
    1.3. Furthermore it takes only 64 years for the following debts to prescribe:
    i. a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;
    ii. a debt owed to the State.
    Besides the above stated categories and statute guided debts, the rest of the debts that arise in the normal course of business and other everyday transactions prescribe after 35 years.
    1 Section 16 of the Prescription Act
    2 Section 15 (a) of the Prescription Act
    3 Section 15 (b) of the Prescription Act
    4 Section 15 (c) of the Prescription Act
    5 Section 15 (d) of the Prescription Act
    Prescription should run throughout the period stated above without being interrupted for the debt to be extinguished. The interruption of prescription has the effect of either delaying prescription or resetting it altogether.
  2. DELAY AND INTERRUPTION OF PRESCRIPTION.
    2.1. Delay
    A delay in prescription has the effect of adding the number of years a debt extinguishes. The following are conditions under which prescription is delayed in Zimbabwe:
    i) When the creditor is laboring under certain legal disability, such as being a minor, legal insanity, being under specified curatorship.
    ii) Marriage and partnership, the creditor being either a spouse or partner respectively
    iii) The debtor being absent from the Republic.
    iv) The debt being:
    a. disputed and going through arbitration;
    b. subject to a dispute claimed against the estate of a deceased debtor,
    c. against the insolvent estate of a debtor,
    d. against a company in liquidation or
    e. against an applicant under the Agricultural Assistance Scheme.
    v) the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed.
    The delay is one year if the above stated (i) to (v) were to cease to be within one year after or before prescription would normally be completed6.
    2.2. Interruption
    There are broadly two causes of interruption of prescription that is judicial interruption and acknowledgment of debt by the debtor. Generally interruption of prescription has the following effects, either resetting prescription or being a void interruption.
    2.2.1. Judicial Interruption
    6 Section 17 of the Prescription Act
    Judicial Interruption of Prescription refers to court process that has the effect of resetting prescription if a creditor successfully prosecute their case. The following are examples of process that can interrupt prescription:
    (a) a petition;
    (b) a notice of motion;
    (c) a rule nisi;
    (d) a pleading in reconvention;
    (e) a third party notice referred to in any rule of court;
    (f) any document whereby legal proceedings are commenced.
    However, if the creditor does not successfully prosecute their case, by either abandoning their case prior to judgement or they are unsuccessful in their claim, prescription continues to run as if it was never interrupted7.
    2.2.2. Acknowledgement of indebtedness
    If a debtor acknowledges his or her indebtedness (in express terms or tacitly), they interrupt prescription with the effect that the running of prescription is reset de novo. This can happen any time before or after prescription has run its course. Even during trial a debtor can acknowledge that they are indebted to the creditor with the same results being archived, that is the resetting of Prescription.

Conclusion
Prescription is a way of freeing the debtor from the debt and the creditor. It was invented in order to avoid perpetual indebtedness and undue harassment of a debtor. It is noteworthy that the Prescription Act does not solely deal with extinguishing of debt, but inter alia the transfer of property and servitudes due to the passage of time without interruption of enjoyment by someone with superseding rights.
7 Section 19 of the Prescription Act

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