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Questions and Answers
What is one of the characteristics of a provisional sentence process?
What is one of the characteristics of a provisional sentence process?
A provisional sentence becomes final immediately after it's granted.
A provisional sentence becomes final immediately after it's granted.
False
What burden of proof must the plaintiff satisfy in a provisional sentence case?
What burden of proof must the plaintiff satisfy in a provisional sentence case?
Balance of probabilities (BoP)
A liquid document must be a written instrument that is __________ and acknowledges indebtedness.
A liquid document must be a written instrument that is __________ and acknowledges indebtedness.
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Match the following components of provisional sentence with their descriptions:
Match the following components of provisional sentence with their descriptions:
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Which of the following is NOT a prerequisite for the court to grant a provisional sentence?
Which of the following is NOT a prerequisite for the court to grant a provisional sentence?
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The defendant has the option to pay the claim and interest immediately after receiving the summons.
The defendant has the option to pay the claim and interest immediately after receiving the summons.
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What documents must be attached to the Provisional Sentence Summons?
What documents must be attached to the Provisional Sentence Summons?
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If the defendant opposes the matter, they must file an affidavit by 12 noon, __________ before the hearing.
If the defendant opposes the matter, they must file an affidavit by 12 noon, __________ before the hearing.
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What happens if the defendant fails to pay or file an opposing affidavit?
What happens if the defendant fails to pay or file an opposing affidavit?
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Study Notes
Provisional Sentence
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Characteristics/Definition:
- An extraordinary procedure
- Liquid documentary proof of claim against debtor is required
- Becomes final after 2 months if defendant fails to act
- Is a speedy process, avoiding lengthy trials
- A hybrid process; starts with summons, then proceeds to application in main case if required
- Unique provisional sentence summons is used
Defendant's Affidavit
- Must set out defense
- Must state whether the defendant admits or denies the signature on the liquid document
- If the document was signed by an agent, the defendant must state if he/she admits or denies the agent's authority or signature
- Summons warns defendant that failure to pay or oppose the claim may result in a provisional sentence against him/her
- If defendant pays, he/she is entitled to demand security from the plaintiff.
Evidentiary Burden
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Evidentiary Burden of Plaintiff:
- The plaintiff bears the burden to prove the following:
- Authenticity of defendant's signature
- Authenticity of the defendant's agent's signature
- Authority of the defendant's agent
- Fulfillment of any pertinent simple condition
- Plaintiff's entitlement to the claim as shown by the liquid document; that the plaintiff is the creditor in the document
- The plaintiff bears the burden to prove the following:
Requisites
- The court will grant the plaintiff if:
- The plaintiff's claim is based on a liquid document.
- The defendant(debtor) isn't able to produce sufficient evidence in his favor.
- The onus (burden of proof) is on the plaintiff and he is able to prove his case to the court.
- Or, where the onus is on the defendant, he/she cannot produce sufficient proof which results in the satisfaction of court order against the plaintiff in a principal case
Prerequisites
- Liquid document:
- Written instrument (e.g., cheque, acknowledgement of debt, promissory note, mortgage bond, bill of exchange)
- Signed by the defendant or his/her agent
- Acknowledges the indebtedness of the defendant. This acknowledgment does not have to be proven by external evidence
The Summons
- Provisional sentence summons: attaches a copy of the liquid document.
- The summons gives defendant two options: pay immediately or oppose.
- If opposing, defendant has to file affidavit by 12 noon two days before the hearing.
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Description
Test your understanding of provisional sentences and the relevant procedures involved. This quiz covers characteristics, the defendant's affidavit, and evidentiary burdens in legal contexts. Perfect for law students looking to reinforce their knowledge of these important legal concepts.
