CAPITA SELECTA: PRIVATE LAW A

Week 1: Origin and recognition of a general enrichment action

17 July 2025
THE LAW OF UNJUSTIFIED
ENRICHMENT
 OUTLINE
▪ Understanding the subject matter
▪ Origins of the Law of UE
-Law of Obligations
-Concept of Justice
▪Recognition of a general enrichment action

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 PRESCRIBED READING
▪ Unjustified Enrichment Study Guide: pages 1 – 21 (1.1 – 1.4)
▪ Nortje v Pool (1966) (AD)
▪ Blesbok Eiendomsagentskap v Cantamessa (1991) (T)
▪ McCarthy Retail Ltd v Shortdistance Carriers CC (2001) (SCA)
▪ Kudu Granite Operations (2003) (SCA)
▪What is wrong with modern unjustified enrichment law in South
Africa? Serfontein JL - De Jure 48 Volume 2 2015 pp 388-410

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 UNJUSTIFIED ENRICHMENT
▪ Person is unjustly enriched at the expense of another
▪ An obligation to restore what has been lost arises
▪What is an obligation?
“An obligation arising whenever one person’s estate has
been increased at the expense of another person’s
estate and sufficient legal ground (causa) for the
retention of such increase is lacking” (Eiselen & Pienaar
2nd ed)

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ORIGINS
 Unjustified Enrichment
▪ UE 3rd branch of the law of obligations
I. Contract
[Link]
▪ Contract + Delict = developed
▪ S.A UE less developed
▪German Law of UE more developed

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 JUSTICE
▪ Ulpian
“Iustitia est constans et perpetua voluntas ius suum
cuique tribuendi”
“Justice is the constant and perpetual will to give each
one his due”
▪ Concept entails “person may have or enjoy, or request
to receive what is due to him/her” and that a person’s
current status must be protected

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 JUSTICE CONT…
▪ Principles of natural law applicable in all legal systems
▪ Relied on by Roman lawyers and formulated as follows:
I. Pacta sunt servanda (agreements must be observed in good faith)
II. Ne quis alteram laedas (let no one harm another)
III. Neminem cum alterius detriment fieri loculetiorum (enrichment
principles)

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 DIFFERENCES
▪ Contract
- To protect the obligations arising from a contract and put the aggrieved party in the
position they would have been had the contract been performed
- facilitative/forward remedies

▪ Delict
- To put the successful claimant in the position they would have been in had they
not been wrongly injured.
- restorative/backward remedies

▪ UE
▪To equalize things by filling the hole in the plaintiff’s assets from the defendants’
assets that arose at the expense of the plaintiff

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 Roman Law & Law of Obligations
▪Contract
- Pacta sunt servanda
▪ For one to have remedy, must have concluded known contract in Roman Law
▪ Also had to fulfil requirements of such contract
▪ Only then one could rely on a remedy applicable to the specific contract
▪ Different actions were available depending on the facts of each case
Example:
- Actio empti for a purchaser against a seller
- Actio venditi for a seller against the purchaser
- Actio locati for a lessor against a lessee
- Actio mandati against a mandatary

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Roman Law & Law of Obligations cont..
▪Delict
- Separate remedies and unique remedies
I. Civil law remedies
(i) furtum, rapina and iniuria

(II) Praetorium remedies

(i) Metus, dolus, and fraus creditorum

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Roman Law & Law of Obligations cont..
▪ UE
- Romans several remedies neither contractual nor delictual
- Underpinned by enrichment principle of natural law
- Pomponius “Nam hoc natura aequum est neminem cum alterius detriment fieri
locupletiorum”
- Even though remedies were made with reliance on enrichment principle, was
never developed to an independent legal rule that could give rise to legal liability
- Currently no consensus about which Roman actions could have been considered
to have been enrichment remedies
- Romans did not categorize UE as an independent remedy
- Contract and delict viewed as sources of obligations

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Roman Law & Law of Obligations cont..
- Number of remedies giving rise to obligations that could not be classified as
arising from contract or delict
- Classification ex variis causarum figuris (put everything together)
- Other classification split delictual (quasi delicto) and contractual (quasi contractu)
remedies apart
- Several remedies not properly classified referred to as condictiones (rooted in
Roman procedural law)
- Condictiones compiled in Digest and applied in circumstances such as:
• condictio indebiti - securing the return of a transfer of money or property which was not owed at all (an
undue payment).
• condictio ob turpem vel iniustam causam - return of a transfer which was made in terms of an illegal or
otherwise baseless agreement.
• condictio causa data causa not secuta - return of a transfer which was made in the knowledge that it was
not owed, but with the view of eliciting a counter performance.
• condictio sine causa
• condictio sine causa generalis
• condictio sine causa specialis

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Casuistic approach General principles
of liability
▪Delict
▪ General requirements for liability
▪ General remedies
▪ Actio iniuriarum
▪ Actio legis aquiliae

▪Contract
▪ Pacta sunt servanda
▪ General requirements for liability
▪ General remedies
▪ Specific performance
▪ Damages
▪ Cancellation

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Recognition of a General Enrichment Action

▪R law --- RD law --- SA law:

▪recognition of specific enrichment actions
▪no recognition of general liability on the basis of
unjustified enrichment NB
▪De Vos:
▪advocated the recognition of a general enr action
▪cited various provincial division decisions to support his
views

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Recognition of a General Enrichment Action

▪Nortje v Pool (1966) (AD) NB

▪accepted: R law remedies extended in ius commune +
further extended ad hoc by SA courts BUT
▪held: no general enrichment action in SA law
▪ (i) no such general action under R or RD law
▪ (ii) case law cited by De Vos did not prove his case (rejected De Vos’ calls)
▪ (iii) fear of an “unbridled and uncontrolled” form of liability (floodgate fear)

▪BUT: the door was left open for the future

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Recognition of a General Enrichment Action

▪Scholtens:
▪argued that decisions of the Dutch courts in 18th C evidenced
the development and existence of a general enr action in
18th C Dutch practice
▪decisions were unpublished at the time of De Vos’ thesis but
were available before Nortje v Pool was decided
▪decisions not drawn to AD’s attention

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Recognition of a General Enrichment Action
▪De Vos:
▪introduction of general action as a subsidiary action
▪should not replace existing specific actions at the outset

▪Blesbok Eiendomsagentskap v Cantamessa (1991)

(T)
▪general action should be recognised ASAP and should
immediately replace existing actions
▪= obiter

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Recognition of a General Enrichment Action
▪McCarthy Retail Ltd v Shortdistance Carriers CC
(2001) (SCA) NB
▪SCA did not recognise a general enr action in casu (held one
of the existing remedies to be applicable) BUT
▪(i) stated that it may well recognise such an action in future if
confronted with circumstances not covered by an existing
action
▪(ii) made NB comments irt a general action
▪(iii) adopted a new approach iro unjustified enr claims

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Recognition of a General Enrichment Action

▪McCarthy (cont.)
▪general action, when introduced, should function as a
subsidiary action (De Vos)
▪recognised 4 general requirements for liability arising from
unjustified enrichment:
▪(a) enrichment of the defendant
▪(b) impoverishment of the plaintiff
▪(c) enrichment of the defendant at the expense of the plaintiff
▪(d) absence of a causa (justification) for enrichment

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Recognition of a General Enrichment Action

▪Post-McCarthy - ?
▪courts approach unjustified enr claims in the following way
(not necessarily in this order):
▪consider the 4 general requirements
▪consider whether the circumstances of the case at hand lend
themselves to the application of any existing action
▪if circumstances are not covered by an existing action, consider whether
a particular action should be extended (ad hoc) to cover the
circumstances

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Recognition of a General Enrichment Action
▪O’ Brien: 2000 note (see pg 20 of study guide)
▪suggested the recognition of a general condictio sine causa to
replace the existing condictiones
▪referred to and noted by the SCA in McCarthy
▪Kudu Granite Operations (2003) (SCA)
▪court did not identify the specific condictio applicable
▪Sonnekus: general requirements for obligations arising from
UE have developed to such an extent that the condictiones
are no longer the sole point of departure
▪Sonnekus’ interpretation = confirmed in Mndi v Malgas
(2006) (EC)

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Recognition of a General Enrichment Action
▪O’ Brien: 2000 note (see pg 20 of study guide)
▪suggested:
▪(i) a general condictio sine causa should be recognised to replace
the existing condictiones
▪(ii) such general condictio should be available as a remedy
regardless of the form the unjustified transfer takes
▪money / property (existing condictiones)
▪value of services (example - ?)

▪views referred to and noted by the SCA in McCarthy

▪see also p 43 – 46 SG

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What do you have to do now?
• Get the prescribed readings
• Read them ☺
• Summarise this week’s work
• Remember to upload it by the due date
HAPPY STUDYING ☺