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Jacques Du Plessis
Fri, 30 Nov 2007 11:39:34 +0200
Birksian/sine causa approach to enrichment law


I fully agree with the view that one should be wary of restricting the recoverability of transfers which are not due. But the proposed reliance-based test would certainly not exclude recovery in all the reckless payment cases. Let's look at Florian's example. The bank may indeed have been reckless in its insistence that the amount is due; but it can be doubted whether the bank created the impression that the payment may be kept irrespective of whether it is due or not. So, the claim should be allowed, but subject to the change of position defence. Allowing the change of position defence can of course also be justified on reliance-based grounds, but it is a distinct, separate stage in the process: the recipient's reliance may not have been sufficiently strong to exclude the claim altogether (stage 1), but this does not make it irrelevant; the reliance could still be protected, though to a lesser extent, through only making the recipient liable for value remaining (stage 2).

Let me just add the following. I am not arguing that evidence relating to transferor's state of mind (inasmuch as it is really ascertainable) and associated conduct is irrelevant in deciding whether there should be a claim. It can be part of the relevant facts when establishing whether there is a reliance worthy of protection. But it is one thing to be a relevant fact in deciding whether an undue payment is recoverable, and another to be a requirement for recovery.



Prof Jacques du Plessis
Faculty of Law
University of Stellenbosch
Private Bag X1
Stellenbosch Matieland 7602
South Africa

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