Overview

Conventional thinking teaches that the absence of liability - in particular contractual invalidity - is itself the 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. The book 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 enrichment. Finally, the book seeks to defend in principled terms the mixed approach to enrichment by transfer (an approach based both on unjust factors and on the absence of a 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.

Full Product Details

Author:   Helen Scott
Publisher:   Bloomsbury Publishing PLC
Imprint:   Hart Publishing
Dimensions:   Width: 15.60cm , Height: 1.50cm , Length: 23.40cm
Weight:   0.551kg
ISBN:  

9781849462235

ISBN 10:   1849462232
Pages:   250
Publication Date:   10 July 2013
Audience:   College/higher education ,  Professional and scholarly ,  Tertiary & Higher Education ,  Professional & Vocational
Format:   Hardback
Publisher's Status:   Active
Availability:   Manufactured on demand  
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Table of 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

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Author Information

Helen Scott is an Associate Professor in the Department of Private Law at the University of Cape Town.

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