PVL3704 UNJUSTIFIED ENRICHMENT LIABILITY AND ESTOPPEL - CONDICTIO INDEBITI

1. Requirement for the condictio indebiti (3) (Roman Law) datio of money or things; error; and unduey payment 2. Datio (Roman Law) dationis. noun. Definitions: donation/gift. giving/assign- ing/allotting/handing over (act), transfer. 3. solvendi animo per errorem (Roman Law) 4. Quantum of claim (Roman Law) 5. Requirements in Roman Dutch Law 6. Obiligation to return in Roman Dutch Law 7. Defence can be raised in the mistaken belief that the debt was due. The received had to restore the thing plus fixtures plus fruits (less production expenses) The receiver entitled to compensation for his or her necessary expenses and useful expenses. Interest drawn on the money paid for, and the value of, a service cannot be recovered with this condictio. Essentially the same as that which feature in Roman Law. View that a payment based on an error of law could not be recovered remained in place. Plaintiff could be denied the condictio only on consid- erations of equity Obligation of receiver to restore the thing:- Obligation to return the thing received If no longer in his or her possession then the value thereof to be returned. He / She has lost or alienated the thing or that the loss after he/she became aware of his / her obligation was not his or her fault. 8. Condictio indebiti in SA Law 9. Party to satisfy the following require- ments: Has to restore as much of the value of the thing as still remained in his / her estate. 1. Remedy based on unjustified enrichment. 2. Person reclaims performance rendered under an excusable mistake that was not owing i.t.o. the remedy. 3. Unowed performance may in certain circumstances be reclaimed from a party other than the actual recipi- ent thereof. 4. Reclamataion depends on who the law regards as being the actual recipient of the value transferred. a) He or she must have given or transferred something in ownership to another. (Transfer of copyright or a trademark, or even a claim, can be reclaimed with the condictio indebiti) b) Transfer must have taken place as the result of a mistake having been made on the part of the transferor, c) the mistake, whether in law or in fact, must have been reasonable mistake under the circumstances. 10. Payment Impoverished party must prove that it has made a payment in the broad sense described above to the enriched party. This includes : Transfer of ownership in a thing payment of money performance of work and services transfer of possession transfer of such immaterial property as rights. 11. not owed The impoverished party must prove that the payment was not owed. No debt was owing to the enriched party. 12. excusable mistake impoverished party must prove that the payment was made by mistake and that the mistake was an excus- able one. If impoverished party knew that the payment was not owing, it is assumed that the intention had been to 13. Willis Faber En- thoven Pty Ltd v Re- ceived of Revenue and Another make a donation and therefore performance cannot be reclaimed. Exception - when payment is made under duress and protest. Appellate division refused to jettison the requirement concerned. 14. iustus error retention of the iustus error requirements is con- tentious, because it leads to anomalies and unfair results. Right to equal treatment and fairness under constitutional principles may be used to develop the law. 15. Frame v Palmer Court accepted that the value of a service rendered could in our contemporary law, be reclaimed by em- ploying such action. Rumpff JA (minority report agreed to the above but the majority of the court left the ques- tion open. 16. factum SERVICE RENDERED 17. Gouws case Prevalent view appears to have been that the value of a service rendered cannot be claimed by ANY of the condictiones sine causa. 18. Enriched party's de- fence of non-enrich- ment 19. receipt of money en- richment King Case. Once undue payment has been made, the receiver has to prove the circumstances that will relieve him or her of the obligation to repay. Plaintiff can claim the maximum amount of enrichment, but the defendant can claim that his or her enrichment has lessened, or has even completely fallen away, provided that the rules in respect of default (mora) are not applicable. If the defendant is not in a better position than he or she would have been had the payment not taken place, 20. Payment made by cheque into over- drawn accounts 21. Money exchanged for something 22. Failure of evidence of non enrichment then he or she cannot be considered to have been enriched, and therefore will no longer be liable. If he or she was only partly better off after the undue payment was made, then the enrichment is correspondingly lessened.. No necessary that funds received be kept separately. ABSA BANK LTD v STANDARD BANK OF SA LTD 1. If receiver bought something that they would have bought in any case, then he or she is enriched (saved expenses) by the full amount received, irrespective of the value or fate of the acquisition. 2. If received has done something with the money that they would not otherwise have done then they are considered as being enriched but only to the extent of the value of the performance that they have obtained. 3. May be released from liability by delivering the thing bought to the impoverished party. 4. where thing itself is delivered, and its worth more than amount paid for it, the impoverished party must pay he enriched party the amount of excess value. 5. These principles equally apply in those circum- stances where the receiver donates the undue money to a third party. Where receiver of undue payment can be held liable of the full value of what was received although the undue payment is no longer in his or her possession. Where he or she received the payment: a. knowing that it is not due; b. where he or she later becomes aware of the fact that the payment was not due, or c. where he or she should have realised that there was a possibility that the performance could at a later stage, prove to be undue. will be able to raise the defence of the diminishing or the falling away of enrichment however can not be raised where the enriched party either intentionally or negligently caused the diminishing of the enrichment concerned. 23. interest due to mora the party who falls into moa with the duty to repay is liable for interest as well. 24. error of law or error of fact enriched party only falls into mora at the time when the impoverished party demands payment from the enriched party. One can only succeed with the condictio indebitit if the relevant error is a mistake of fact. If plaintiff acted under a mistake of law the action was not available to him or her. 25. Rooth v The State Case Law before 1992, payment as a result in law, due either to the payor not knowing the relevant law, or to him or her not understanding the law correctly excluded the right to repayment. Requirement that the mistake must have been one of fact has its origins in an incorrect interpretation of the decision in Rooth v The State by our courts. 26. Willis Faber En- Appelate division finally resolved the issue of whether thoven v Reciever of an error of law could form the basis of the condictio Revenue indebiti. On appeal the Appelate Division decided that there was no distinction could logically be drawn between 27. Willis Faber on ex- cusability of error errors of fact and errors of law for the purposes of the condictio indebitit. The Division held that either kind of mistake is sufficient for success with the concitio indebiti. Appelate Division accepted that a factual error, and consequently and error of law must be reasonable.