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Vol 21 No 11 Nov/Dec 2016

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Unjust Enrichment in South African Law: Rethinking Enrichment by Transfer

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ISBN13: 9781849462235
Published: July 2013
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £57.99



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Conventional thinking teaches that the absence of liability - in particular contractual invalidity - is itself a reason for the restitution of transfers in the South African law of unjustified enrichment.

However, this book argues that while the absence of a relationship of indebtedness is a necessary condition for restitution in such cases, it is not a sufficient condition. It takes as its focus those instances in which the invalidity thesis is strongest, namely those traditionally classified as instances of the condictio indebiti, the claim to recover undue transfers.

It seeks to demonstrate that in all such instances it is necessary for the plaintiff to show not only the absence of his liability to transfer but also a specific reason for restitution such as mistake, compulsion or incapacity.

Furthermore, this book explores the reasons for the rise of unjust factors in South African law, attributing this development in part to the influence of the Roman Dutch restitutio in integrum, an extraordinary, equitable remedy that has historically operated independently of the established enrichment remedies of the civilian tradition and which even now remains imperfectly integrated into the substantive law of unjustified enrichment.

Finally it seeks to defend in principled terms the mixed approach to enrichment by transfer (namely unjust factors and absence of legal ground) which appears to characterise modern South African law. It advocates the rationalisation of the causes of action comprised within the condictio indebiti, many of which are subject to additional historically-determined requirements, in light of this mixed analysis.

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Subjects:
South Africa, Restitution, Other Jurisdictions
Contents:
1. Introduction
I Enrichment Liability in the Civilian Tradition
II Enrichment Liability in South African Law
III A Law of Unjustified Enrichment?
IV Unjust Enrichment: the Reanalysis of Enrichment by Transfer
V Beyond the Condictiones
VI Plan of Action

Part I Mistake
2. Mistake: Nineteenth Century
I Introduction
II Condictio Indebiti
III Restitutio in Integrum on Grounds of Iustus Error
IV Restitution of Contractual Performance on Grounds of Iustus Error
V Conclusion
3. Mistake Continued: Twentieth Century and Beyond
I Introduction
II Twentieth Century: Excusable Mistake of Fact
III Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue
IV Twenty-first Century: Excusable Mistake
V Analysis: Excusable Mistake in South African Law

Part II Compulsion and Incapacity Introduction: Taking Stock
4. Compulsion
I Introduction
II Historical Background
III Restitution of Compelled Transfers: Nineteenth Century
IV Restitution of Compelled Transfers: Twentieth Century
V Analysis
5. Incapacity: Minority and the Doctrine of Ultra Vires
I Introduction
II Historical background
III Restitution of Minors' Transfers in South African Law
IV Restitution of Ultra Vires Transfers
V Conclusion

Part III Theory
6. Theory: Unjust Factors or Absence of Legal Ground? I Introduction II Unjust Factors Analysis in English Law
III Absence of Legal Ground Analysis
IV Civilian Critique of the Unjust Factors Analysis
V The Case for Unjust Factors VI Unjust Factors and the Common Law Method VII A Mixed Approach
7. Conclusion
I Unjust Enrichment in South African Law
II In Defence of the Unjust Factors Analysis
III Unjust Enrichment: the Future