Page 92 - Q&A 2019/2020

Can I ignore the notice of demand if delivered
at the wrong address?

Jaco van den Berg
July 2019
“I signed a personal guarantee for my company with a credit provider. The
company has defaulted on payments and the credit provider now sent me
a notice demanding payment under the guarantee. However, they sent it
to the company office and not to my domicile address as contained in the
guarantee agreement. Does this mean that the demand is not valid as it was
not sent to the right address?”

What you are referring to is typically termed a mode of delivery clause which
stipulates where and by which form (fax, email, post, by hand etc.) parties may
provide formal notices to each other to enforce aspects of their agreement.
As a general rule our law of contract demands specific adherence to the
provisions of an agreement, which includes adherence to the provisions of a
mode of delivery clause contained in an agreement. However, to determine
whether non-compliance with such a mode of delivery clause invalidates a
demand sent under a guarantee agreement, our Supreme Court of Appeal
recently had to review the position in respect of such mode of delivery clauses.
In the matter the court had to decide whether delivery of a notice of demand
to a guarantor at an address other than the prescribed address in the mode
of delivery clause contained in the contract, still constituted a valid demand.
The court considered whether a mode of delivery clause in a contract should
be interpreted strictly or prescriptively, or rather descriptively, meaning that the
broader context should be considered and that it is not necessary for strict
compliance.
The Supreme Court of Appeal found that in the current matter the mode of
delivery clause was descriptive in nature and that as the demand was made
and received even though not exactly as per the provisions of the mode of
delivery clause, the demand was still valid as there was effective presentation of Litigation
the demand to the guarantor.

This does not mean that mode of delivery clauses can therefore be ignored as
the facts of each situation will determine the validity or not of a notice given.
However, where there was effective presentation and receipt, our courts have
now found that despite a lack of strict compliance, a notice of demand may
still be valid.
In your situation therefore, it may be that there are grounds to argue that there
was effective presentation of the demand despite non-adherence to the mode
of delivery clause. Our advice is to consult your attorney and obtain advice

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