lO M oARcPSD| 48011787
Dow nloaded by Vincent kyalo ()
, lO M oARcPSD| 48011787
Unjustified Enrishment and Estopple PVL3704
Questions and answers
• Write a critical discussion on negative
misrepresentation (misrepresentation by
omission) within the context of estoppel. Refer to
relevant case law. (10)
According to the doctrine of estoppel when it is applied
the first requirement for the application of the doctrine is
that a representation is made that, secondly, the
representation must create a false impression. They are
contained within a single idea or concept, namely
misrepresentation. To uphold a clear understanding, it is
advisable to hold the dual nature of the requirement in
mind. These requirements can, respectively, be compared
with the similar requirements for delictual liability,
namely the act and the wrongfulness concerned.
Misrepresentation by omission constitutes as a
misrepresentation only if a legal duty rests on the
estoppel-denier concerned to act positively. An omission
in the form of the non-fulfilment of a legal duty to act or
even just to speak is, therefore, a misrepresentation that
can give rise to a successful plea of estoppel.
De Wet holds the view that (except in the form of a duty
to take care of something, which is a criterion for the
establishment of fault in the form of negligence), the
abiding does not plays a part in the creation of, or even
Dow nloaded by Vincent kyalo ()
, lO M oARcPSD| 48011787
the disaster to remedy a misconception that was caused or
created.
the existence, or the non-existence, of a duty has no effect
on the factual course of events. One can, in fact, create, or
fail to rectify, a mistaken impression without the existence
of such a duty. However, the question remains as to
whether the impression has been created by a
misrepresentation contrary to a legal duty, that is by one
that is objectively unreasonable, and which is, thus,
wrongful. To establish the above (and not to determine the
factual course of events), it is necessary to make use of the
concept of the duty to speak. If the impression is created
by a representation in the form of an omission, the
omission will be wrongful if there is a legal duty to act
positively, given the prevailing situation. In other words,
the wrongfulness of the act lies in the creation of a
particular impression that contravenes a legal duty. Only
when it has been established that the existing impression
created was brought about by means of a
misrepresentation (per omissionem), can the issue of
estoppel possibly be deemed worthy of consideration.
Broadly speaking, such a view aligns with Van der
Merwe’s viewpoint
• A owns a factory manufacturing steel in a
continuous process. His monthly electricity bill
averages R100 000. He just received a letter from
the Johannesburg Municipality in which they
Dow nloaded by Vincent kyalo ()
, lO M oARcPSD| 48011787
threaten to cut his electricity if he doesn’t
immediately pay his “arrear account of R300
000”. A knows that there must be a mistake
because his account is paid in full, but also knows
that if there is a disruption in his electricity
supply, he will suffer severe losses. He pays the
amount immediately and sends a letter of
complaint with. Advice A whether he will be able
to reclaim the R300 000 he paid, and with which
remedy? In your answer discuss the requirements
for this remedy. (10-12)
The action should be instituted by A is the condictio
indebiti. This action is available in cases where a debt not
owed was paid this is a remedy that is based on unjustified
enrichment. No unlawful, ultra vires/void contract is in
this scenario relevant here and thus it appears as if no
other condictiones could be applicable.
The 3 requirements are: 1. Transfer of ownership in the
form of payment of money or delivery of a specific object
2. Payment must take place under the false belief that the
performance was owing. This does just basically mean
that the party concerned must have been under impression
that the performance in question was due. 3. The mistake,
either a legal or factual mistake, must have been
reasonable in the circumstances (iustus error).
With reference to the case of CIR v First National
Industrial Bank Ltd 1990 3 SA 641 (A): In universal the
Dow nloaded by Vincent kyalo ()
Dow nloaded by Vincent kyalo ()
, lO M oARcPSD| 48011787
Unjustified Enrishment and Estopple PVL3704
Questions and answers
• Write a critical discussion on negative
misrepresentation (misrepresentation by
omission) within the context of estoppel. Refer to
relevant case law. (10)
According to the doctrine of estoppel when it is applied
the first requirement for the application of the doctrine is
that a representation is made that, secondly, the
representation must create a false impression. They are
contained within a single idea or concept, namely
misrepresentation. To uphold a clear understanding, it is
advisable to hold the dual nature of the requirement in
mind. These requirements can, respectively, be compared
with the similar requirements for delictual liability,
namely the act and the wrongfulness concerned.
Misrepresentation by omission constitutes as a
misrepresentation only if a legal duty rests on the
estoppel-denier concerned to act positively. An omission
in the form of the non-fulfilment of a legal duty to act or
even just to speak is, therefore, a misrepresentation that
can give rise to a successful plea of estoppel.
De Wet holds the view that (except in the form of a duty
to take care of something, which is a criterion for the
establishment of fault in the form of negligence), the
abiding does not plays a part in the creation of, or even
Dow nloaded by Vincent kyalo ()
, lO M oARcPSD| 48011787
the disaster to remedy a misconception that was caused or
created.
the existence, or the non-existence, of a duty has no effect
on the factual course of events. One can, in fact, create, or
fail to rectify, a mistaken impression without the existence
of such a duty. However, the question remains as to
whether the impression has been created by a
misrepresentation contrary to a legal duty, that is by one
that is objectively unreasonable, and which is, thus,
wrongful. To establish the above (and not to determine the
factual course of events), it is necessary to make use of the
concept of the duty to speak. If the impression is created
by a representation in the form of an omission, the
omission will be wrongful if there is a legal duty to act
positively, given the prevailing situation. In other words,
the wrongfulness of the act lies in the creation of a
particular impression that contravenes a legal duty. Only
when it has been established that the existing impression
created was brought about by means of a
misrepresentation (per omissionem), can the issue of
estoppel possibly be deemed worthy of consideration.
Broadly speaking, such a view aligns with Van der
Merwe’s viewpoint
• A owns a factory manufacturing steel in a
continuous process. His monthly electricity bill
averages R100 000. He just received a letter from
the Johannesburg Municipality in which they
Dow nloaded by Vincent kyalo ()
, lO M oARcPSD| 48011787
threaten to cut his electricity if he doesn’t
immediately pay his “arrear account of R300
000”. A knows that there must be a mistake
because his account is paid in full, but also knows
that if there is a disruption in his electricity
supply, he will suffer severe losses. He pays the
amount immediately and sends a letter of
complaint with. Advice A whether he will be able
to reclaim the R300 000 he paid, and with which
remedy? In your answer discuss the requirements
for this remedy. (10-12)
The action should be instituted by A is the condictio
indebiti. This action is available in cases where a debt not
owed was paid this is a remedy that is based on unjustified
enrichment. No unlawful, ultra vires/void contract is in
this scenario relevant here and thus it appears as if no
other condictiones could be applicable.
The 3 requirements are: 1. Transfer of ownership in the
form of payment of money or delivery of a specific object
2. Payment must take place under the false belief that the
performance was owing. This does just basically mean
that the party concerned must have been under impression
that the performance in question was due. 3. The mistake,
either a legal or factual mistake, must have been
reasonable in the circumstances (iustus error).
With reference to the case of CIR v First National
Industrial Bank Ltd 1990 3 SA 641 (A): In universal the
Dow nloaded by Vincent kyalo ()
