The exact moment a patient falls into default

A patient is treated on the 5th of the month. Five days later, on the 10th, the bookkeeper issues an invoice and sends it to the patient. Two days after that, on the 12th, the practice lodges the claim with the medical fund. The invoice only reaches the patient’s hands seven days after dispatch — on the 17th.

The contract says: “Payment is due within 30 days.”

But 30 days from when? From the 5th, when the service was rendered? From the 10th, when the invoice was raised? From the 12th, when the claim was lodged with the medical fund? Or from the 17th, when the patient actually received it?

Each starting point gives you a different “day 31.” The gap can be three weeks wide. And that gap is the difference between acting confidently — or hesitating in uncertainty.

South African law draws a sharp line between two kinds of default, or mora:

• Mora ex re arises automatically when a contract specifies a due date. If the agreement says payment is due within 30 days, then on day 31 the debtor is in breach. No reminder is needed. This principle was firmly established in Federal Tobacco Works Ltd v Barron 1950 (4) SA 717 (A).
• Mora ex persona applies where no due date is fixed. In that case, the creditor must first issue a demand before the patient can be said to be in default.

THE THEORY IS SIMPLE.

The difficulty comes in defining the “trigger.” If your contract ties the 30 days to an invoice, you must be able to prove when the patient received it. Without that, the due date may never crystallise.

This is where legal theory meets daily practice.

In contract law, the dispatch theory applies to acceptances: once an acceptance is posted, the contract is formed. But invoices are not acceptances — they are demands for payment. For these, the receipt theory applies.

That means an invoice is only effective once it enters the patient’s sphere of control — when they could reasonably have become aware of it. Simply sending it is not enough unless your contract includes a deeming provision such as:

“An invoice shall be deemed received three (3) days after posting, or on the day of dispatch by email.”

Without this kind of clause, “day 31” is open to argument.

This is why so many practices underestimate their legal position:

“We must send another letter first.”
Administrative staff often believe something more must be done before handing over — perhaps a reminder, or a further waiting period. In law, that is unnecessary. Once the due date has passed, breach has occurred. All remedies are available immediately.

“The medical aid must pay first.”
Patients often assume their liability depends on the fund’s payment. Not so. The contract is between doctor and patient. The scheme’s delays or refusals cannot postpone breach. Any chasing of the fund by the practice is a courtesy, not an obligation.

“If there’s a billing mistake, I don’t owe.”
Debtors sometimes argue that an admin slip cancels their liability — for example, if the account was sent to the wrong address. That is incorrect. The duty to pay flows from the service received, not from the paperwork. A patient cannot sit back indefinitely and say, “I never got the account.” The service was not for free.

The solution is straightforward:

• Tie payment to a clear and fixed event, such as the date of service.
• Add a deeming clause for invoices.
• Keep basic proof of dispatch or delivery.

FOR EXAMPLE:

“Payment is due 30 days from date of service, whether or not a medical scheme has settled the account. Invoices sent by email are deemed received on the date of dispatch.”

If you need a better understanding or deeper analysis of your practice, don’t hesitate to give us a call.