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Jacques Du Plessis
Wed, 28 Nov 2007 17:11:00 +0200
Birksian/sine causa approach to enrichment law


I am relieved to hear that Duncan is not going after sine causa/absence of legal ground as a principle in all cases in all jurisdictions. Martin has already provided a Scottish perspective. As far as South African law is concerned, may I briefly add the following.

The South African experience with requiring proof of factors such as excusable mistake and compulsion to obtain restitution of transfers which were aimed at discharging liability but failed to do so (ie transfers which were not due) has in fact not been a happy one. Some problems with determining the quality of the mistake or degree of compulsion have been similar to those experienced in the common law. An inability to make these determinations has at times even forced us back into the arms of fictional implied contracts, which is clearly not where we want to be.

At a colloquium recently held in Stellenbosch on the future development of the South African law of unjustified enrichment, there was a clear appreciation on the side of many participants that we need to move away from the current approach. No-one is saying that a transfer which is not due must always be recoverable. It is accepted that there are circumstances when the recipient should be entitled to retain the transfer even though it is not due. The problem is identifying which recipient requires such protection. One possible answer is that it is the recipient who was brought under the impression that he could keep the transfer irrespective of whether it was due or not. Such a test avoids necessarily having to determine whether the transferor actually or supposedly knew/was in doubt/was ignorant about liability, or having to differentiate between the effects of various degrees of compulsion/pressure/influence on the transferor's mind; the focus is on the recipient, and on determining whether his reliance is such that he deserves to keep the undue payment.

How does all of this fit in with the sine causa requirement? In essence, one can say that the failure of the transfer to discharge a due debt prima facie means there is no legal basis for its retention; but whether it ultimately is retained without legal ground depends on whether the test above is met.

It would be interesting to hear of situations involving payments which are not due where such a test would give rise to unacceptable results, compared to an approach which requires that the undue payment must have been made under mistake or compulsion.


Best wishes

Jacques du Plessis

Prof Jacques du Plessis
Faculty of Law
University of Stellenbosch
Private Bag X1
Stellenbosch 7602
South Africa
Telephone: 0027 (0)21 808 3189
Fax: 0027 (0)21 886 6235
Courier: Ou Hoofgebou, c/o Ryneveldt & Andringa Streets, Stellenbosch,
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