Benefit of Excussion
Also known as: Beneficium Ordinis, Benefit of Order and Excussion, Beneficium Excussionis.
What is Benefit of Excussion?
The benefit of excussion (beneficium ordinis seu excussionis) is the common-law right of a pure surety to require the creditor to first exhaust remedies against the principal debtor before pursuing the surety. It is waived automatically when the surety binds themselves "as surety and co-principal debtor".
Drafted and reviewed by
Attorney & Founder, My-Contracts.co.za · Legal Practice Council of South Africa (LPC F17333)
Definition and context
The beneficium ordinis seu excussionis — the benefit of excussion — is a common-law procedural defence available to a pure surety. It entitles the surety to require the creditor first to proceed against the principal debtor, attach and sell the debtor\'s property, and apply the proceeds to the debt before demanding payment from the surety. It derives from Roman-Dutch law and is recognised in South African courts subject to the qualifications in Jans v Nedcor Bank Ltd 2003 (6) SA 646 (SCA), which clarified that the benefit must be expressly raised by the surety and does not suspend the creditor\'s claim automatically.
The benefit is lost in three principal ways. First, by express waiver, which is almost universal in modern commercial practice through the "as surety and co-principal debtor" formula. Second, by conduct inconsistent with reliance on the benefit, such as acknowledging the debt or requesting an indulgence. Third, by operation of law where excussion would be futile — for example, where the principal debtor is insolvent, deceased without estate, or resident outside the court\'s jurisdiction. In each case the surety loses the procedural shield but retains the substantive defence of extinction of the principal debt.
Related common-law benefits are the beneficium divisionis (division among co-sureties) and beneficium cedendarum actionum (cession of the creditor\'s rights and securities to the surety who pays). All three are routinely waived in standard-form suretyship agreements. For consumer creditors and banks, the practical effect is that the surety who signs a template suretyship is effectively a co-principal debtor, and the beneficium of excussion serves mainly as a fallback where the waiver is defective, ambiguous, or unenforceable under section 90 of the NCA or the Consumer Protection Act.
Where this term lives in law
National Credit Act 34 of 2005
Sections: 8, 90
Regulates consumer credit, credit providers, and the in duplum rule in South Africa.
Frequently asked questions
How is excussion invoked?
The surety must raise it as a special plea at the earliest opportunity in the enforcement proceedings. It is not automatic: failure to plead it timeously waives the benefit.
Does excussion apply to a co-principal debtor?
No. The phrase "as surety and co-principal debtor" operates as an express waiver of excussion, division and cession of action. The creditor may proceed directly against the co-principal debtor.
When is excussion lost by futility?
When it would be pointless to first proceed against the principal debtor — insolvency, death without estate, absence from jurisdiction, or where the debt has prescribed as against the principal debtor.
Does excussion apply under the NCA?
The NCA does not expressly regulate excussion but section 90 invalidates unlawful provisions. Where a waiver is hidden in fine print or imposed on a consumer surety, section 90 arguments may partially preserve the benefit.
Is excussion a defence or a deferral?
It is a deferral. Excussion does not extinguish the surety's liability; it requires the creditor to pursue the principal debtor first. If insufficient is recovered, the creditor may return against the surety for the shortfall.
Contract templates using this term
3 templates reference Benefit of Excussion.