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.
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Convention 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. Scott argues that while the absence of a relationship of indebtedness is a necessary condition for restitution, it is not a sufficient condition.
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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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This book argues that while the absence of a relationship of indebtedness is a necessary condition for restitution of transfers in the South African law of unjustified enrichment, 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. Written by an expert in the field this innovative book will be a fascinating study for those interested in the field of restitution law.
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Unrivalled scholarship examining the fundamental doctrines and principles of private law. This monograph series brings together in one place two types of book: works which examine in-depth the fundamental doctrines and principles of private law, and works which engage with the theoretical underpinnings of private law. The series thus aims to contribute to ever-evolving debates about the nature of private law such as problems of classification and taxonomy, remedies, the relationship with public law and the boundaries of private law generally. The series includes, but is not confined to, works on contract, tort, unjust enrichment, equity, property and the conflict of laws, welcoming work which intersects with other fields of study to enable a deeper understanding of private law theory and practice.
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Produktdetaljer

ISBN
9781849462235
Publisert
2013-07-10
Utgiver
Vendor
Hart Publishing
Vekt
551 gr
Høyde
234 mm
Bredde
156 mm
Dybde
15 mm
Aldersnivå
U, P, 05, 06
Språk
Product language
Engelsk
Format
Product format
Innbundet
Antall sider
250

Forfatter

Om bidragsyterne

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