The Dilemma Involving the Waiver of the Right to Rely on the Defence of Prescription

Abstract

The pen is mightier than the sword. This epigram is especially true in the context of law. One of the many questions which has plagued the legal fraternity is whether or not a clause or provision in a suretyship which stipulates that the surety waives his or her right to rely on prescription as a defence to any claim under the suretyship is legally valid. The purpose of this paper is to: first, delve into the definitions of suretyship, principal, surety, waiver and prescription and dissect the nature of prescription; secondly, discuss the current stance of the law with regard to the aforesaid question; thirdly provide a counterargument; and finally, this paper will put forward the viewpoint of the author.