Reconsidering ‘emotionally transmitted debt’ in Zimbabwe and proposals for the reform of surety law based on English and South African experiences

• Date: 01 July 2017
• Author: H Kawadza
• Pages: 194-201
• DOI: 10.10520/EJC-8db349554
• Published date: 01 July 2017
• Record Number: dejure_v50_n1_a13

194 2017 De Jure

Reconsidering ‘emotionally transmitted debt’ in

Zimbabwe and proposals for the reform of surety

law based on English and South African

experiences

1 Introduction

Since the dawn of history, commerce and, especially, the existence of

credit have been linked with the need to indemnify the creditor or

guarantee recovery of the borrowed amount (see Morgan ‘History and

economics of suretyship’ 1927 Cornell L. Rev. 12 153; Russell Surety

Bonds for Construction Contracts (2000) 9; Arnold ‘The compensated

surety’ 1926 Col. L. Rev. 26 171). As an instrument of minimising loss

exposure, the contract of suretyship – both in the corporate and personal

contexts – has gained increased importance in modern times (see

generally Forsyth and Pretorius Caney's the Law of Suretyship in South

Africa (2002); Gallagher The Law of Suretyship (2000)). Underlying its

economic function is an acknowledgment that security is critical for the

consummation of business activities; the availability of credit plays a

facilitative role in boosting the economy through for instance, the

creation of investment and employment (see Pretorius ‘Unlimited

suretyships’ 2012 Journal of Contemporary Roman-Dutch Law 75 189;

Madhuku ‘Protection of the surety under Zimbabwean law’1997 Journal

of African Law 41 1 68). In fact, ‘… the provision of credit for trade and

industry stimulates production and encourages enterprise as well as

helping individuals and businesses over difficult economic times’ (Cork

‘Report of the Review Committee: Insolvency Law and Practice’ (1982)

12 para 20. See also Gallagher The Law of Suretyship ((2000) 3-41).

How to cite: Kawadza ‘Reconsidering ‘emotionally transmitted debt’ in Zimbabwe and proposals for the reform of

surety law based on English and South African experiences’ 2017 De Jure 194-201

http://dx.doi.org/10.17159/2225-7160/2017/v50n1a12