UJER Revision 2016 part 1.ppt - Revision Note this revision is offered by way of summary and is definitely not intended as an exhaustive list of

UJER Revision 2016 part 1.ppt - Revision Note this revision...

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Unformatted text preview: Revision Note: this revision is offered by way of summary and is definitely not intended as an exhaustive list of possible topics, questions and information. It remains your responsibility to be familiar with the entire syllabus for exam purposes. (E&OE) Q 1: Which is the correct condictio to use for costs incurred while taking charge of someone else’s interests? Include a brief discussion on this condictio. Negotiorum Gestio: 2 types: 1. Actio negotiorum gestorum contraria = true management of another’s affairs 2. Actio negotiorum gestorum utilis = extension of above (based on enrichment) One can incur expenses while managing someone else’s affairs Must clearly distinguish btn ANG contraria and ANG utilis In contraria there is a claim for reasonable & necessary expenditure In utilis there is a claim for ER of dominus or impoverishment of plaint whichever is the smallest 1. 2. RD Law introduced 2 changes: Action for useful & necessary expenses if gestor acted against dominus instructions Action for ER if belief he is managing own affairs while managing another’s affairs Bona fide possessor had compensation action under ANG utilis because condictio sine causa not available for factum Bona fide possessor promotes interests of another as well as his own & therefore has a claim under ANGU Extended to include mala fide possessors as well Includes all POSESSORS that effected improvements on another’s land RSA Law: The ANG exists where actions are reasonable and no prohibition by dominus and no intention to donate by gestor Requirements for ANG: 1. Gestor must perform service without instruction 2. Gestor acts reasonably & in dominus interests Requirements: 3. Gestor must have intention to act in interest of dominus (not his own) 4. Gestor must not act free of charge (not donation) 5. Gestor must not contravene express prohibition by dominus If all above are present the gestor has full claim from dominus for reasonable expenses incurred even if dominus not ER’ed But there may be an overlap with ER action ‘cos dominus saved expenses Gestor’s duties to Dominus: 1. Complete what has commenced 2. Exercise due care 3. Account for any ‘profits’ he acquires as gestor 4. Give all that is due to dominus (disclose and hand over fully to him) Gestor has rights of recourse: 1. Claim for all reasonable & necessary expenses (may claim for loss of income for period of gestorship) 2. Gestor can claim (by novation) that dominus take over debts incurred during gestorship or hand him money to pay over Must distinguish differences btn true NG and ER actions because ER action is the exception under NG circumstances ANG Contraria: 1. Gestor can recover all reasonable expenses even if diminished or destroyed 2. Expenses fixed at time of expenditure 3. Fixed content (claim) 4. Self interest absent ANG Utilis: 1. Gestor can only recover lesser of ER or impoverishment 2. ER claim fixed at time of claim (final benefit determines ER). 3. Variable content (claim) 4. Self interest clearly present Q2 Which is the correct condictio to use for enrichment arising as a a result of contracts subject to resolutive or suspensive conditions? Include a brief discussion on this condictio. Condictio causa data causa non secuta: Condictio causa data causa non secuta: Wider application in Roman law than modern RSA ‘cos of progress in our law of contract and its remedies Roman law applications Allowed a person who had performed to change their mind before the other party performed 1. RSA Law – there are 4 bases for instituting this condictio: Supensive & Resolutive conditions: Resolutive condition = if future uncertain event occurs contract is terminated Supensive condition = if the condition (event) does not occur the contract falls away & performance rendered can be reclaimed unless otherwise stated 2. Unfulfilled assumptions: An assumption is a fact elevated into the contract Fourie case said assumptions can only relate to the past or present and has to be true or contract is void 3. A modus: Usually created in donation contracts or testamentary dispositions but RSA law restricted to the latter only Heir has to comply or forfeit the benefit Enforced by other heirs or executor and if heir does not perform any performance made to him can be reclaimed 4. Breach of contract – De Vos says there are enough contractual remedies for breach of contract and this condictio is no longer of application for recission of contract on the grounds of breach of contract Which is the correct condictio to use for enrichment resulting from unlawful contracts? Include a brief discussion on this condictio. Condictio ob turpem vel iniustam causam: RSA law has modified the action Action is used to reclaim money or property transferred ito illegal contract No causa because void contract Illegal contracts are contra bonos mores or prohibited by statute Condictio turpis causa restricted by par delictum rule but this has relaxed from Jajbhay 1939 case in the interests of justice (1st important change in RSA) Plaint required to tender return of anything received from deft Plaint can reclaim performance under illegal agreement Illegality test is objective (ignorance is irrelevant) Ignored formalities = illegality but might make contract void (sale of land?) 1. 2. 3. 4. Requirements: Performance rendered ito illegal contract Other party enriched at plaint’s expense Plaint tendered return of any performance received (2nd important change in RSA law) Plaint not a turpis person Q4 Which is the correct condictio to use if performance is rendered in the mistaken belief that performance was due or owing at the time? Include a brief discussion on this condictio. CONDICTIO INDEBITI: A remedy for setting right mistaken performance CI claim = receiver must restore thing plus fixtures and fruits (less expenses) Interest and services rendered could not be claimed under CI De Vos says liability increases when enriched person is in mora and/or if he becomes aware payment was not due Application in RSA law: CI is a remedy based in UJER Reclaim performance rendered but not owing under an excusable mistake May be reclaimed from another party under certain circs Depends on who the law regards as actual recipient of the value (eg. agent/principal) Three requirements for CI: 1. A has given or transferred in ownership to another (corporeal & incorporeal) 2. Belief by transferor that performance was due (mistake) 3. Mistake of law or fact must be reasonable under the circs PLUS……………. RSA law recognises remedy for payment under protest or duress. 3 Requirements: 1. Payment (in the broad sense) to ER Party 2. Payment not owed 3. Payment was made as a result of a reasonable mistake (or under protest/duress – if not = donation) Q5 Which is the correct condictio to use if performance was due but later fell away and performance was made after the reason for performance has ceased? Include a brief discussion on this condictio. Condictio sine causa specialis RSA Law: Govender case 1984 stated there is uncertainty about application of this enrichment action in our law Action developed in a casuistic way Used in four sets of circumstances: 1. Party performs cos performance due but causa has fallen away RSA law continued: 2. Plaint’s property consumed by 3rd party 3. Bank made payment on forged or stopped cheque 4. Ownership of property transferred sine causa but no other condictiones apply to afford relief (very unclear) Erroneous payment on a stopped cheque: Govender, B&H Engineering cases Had to decide whether the case hinged on CI (mistaken belief debt, promise or obligation owing) or condictio sine causa (payment without cause). Judge said the facts fit sine causa not CI because bank paying on a cheque is not a debtor of the payee. Judge also pointed out that the action would also have been successful if Std Bank had established UJER (instead of ‘payment without cause’) B&H (p 75) cases disagreed and said that UJER requirements all met and sine causa action is the correct one. Rationale = bank acts in its own name not because of contractual relationship btn the parties Jeremy Q6 is in South Africa to watch the Soccer World Cup. He is a UK citizen. While in RSA he rents a house in Durban and intends to travel by car to other centres to watch the games and get to see the countryside in the process. On the way to Jhb to watch the final match he hits a pothole, bursts a tyre and limps a few kms into a Harrismith car repair shop. The mechanic informs him the repairs will take 3 days and cost R13 000 because he has a damaged rim and steering rack. He leaves the car and gets a ride to the match in Jhb on a tour bus. He flies back to the UK the next day. By then the mechanic has discovered the Car is owned by Avis and wants to claim the costs of repairs from Avis before handing back the car. Discuss the rights of the parties. (15) Enrichment must be at the expense of the impoverished party Jester Pools case Buzzard Electrical case Intro (pg 13) UJER depends on movement of assets. Must be a legal relationship between the facts ER must be unjust or sine causa ER award is lesser of enrichment of deft or impoverishment of plaintf. Where property is trfrd it must be retrfrd. If that is impossible – then lesser of rule… 1. 2. 3. 4. Note clear distinction btn UJER, contract and delict Requirements for Enrichment Liability: Increase in deft’s assets Non decrease because of enriching fact Decrease in liabilities Non increase in liabilities Plaintiff must be impoverished: Enquiry into plaint and deft financial movement/change All ‘side effects’ taken into account Defendant’s enrichment must have been at the expense of the plaintiff Must be a causal link btn ER & impoverishment Deft’s ER must have been at the expense of the Plaint. Problems arise with ‘indirect ER’ 1. 2. Gouws vs Jester pools Jansen J judgement on pg 18 criticised for not applying the ‘at the expense of’ requirement. Also need the ‘direct transfer’ requirement Buzzard Electrical case emphasised 2 important distinctions: No subcontracting arrangement Definite subcontracting arrangement Gouws & Buzzard cases A B (C) A built a pool for B (on C’s land which A thought B owned) B disappeared without paying and A sued B for enrichment A failed on basis C had been enriched at B’s expense A B C A contracts for additions with B. B subcontracts to C B sequestrated before C paid & C sues A for enrichment C failed on basis that A had only received what was contracted with B Indirect enrichment must be discussed New Club Garage case Williams Estate case Knoll case Indirect Enrichment: Refer to Gouws v Jester Pools again New Club Garage case 1931 = deft instructed New Club (plaint) to repair car which it did thinking bona fide (mistakenly) deft was owner. Plaint refused to hand back car until acct paid. Deft refused and plaint sued on NG. Court held plaint entitled to necessary & useful expenses as bona fide possessor Williams Estate case = plaint contracted by heir of deceased estate to repair house in the estate. Plaint claimed expenses from executor on bona fide (mistaken) belief that the heir had authority to conclude a contract OBO the estate Court held plaint had right to recover expenses ‘cos he had acted Neg Gestor Milborrow case looked at facts of a true management of affairs action and concluded that Williams Estate and New Club cases were incorrectly decided as true contraria cases and should have been decided on the utilis or extended NG action and plaint’s only be entitled to ER and not necessary expenses (both plaints had acted on contracts = own interests) Knoll case criticised Williams Estate case and held facts were not true NG management of affairs and action should have been on extended utilis basis Knoll (plaint) was subcontractor & failed to prove ER and action failed Jester Pools case also not true NG either, so could A sue C for ER? No. C enriched ‘cos of contract with B. A must sue B for breach of contract ABSA v Stander 1998 case facts in lecture slides: ABSA/Bankfin sued for return of vehicle which Stander had repaired which owner K had loaned to B (and crashed). B vanished. Stander claimed for reasonable, necessary and useful expenses (repairs) and averred he had acted as NG for Bankfin De vos not in favour of indirect ER action if it interferes with Paritas Creditum Held: Stander impoverished and ABSA enriched by expense of repairs saved Stander never intended to manage ABSA’s affairs (not true NG) so he is bona fide gestor who managed the affairs of the dominus in mistaken belief he managed his own affairs Extended NG applies and he has ER action Conclusion: Extended NG as an action for ER is evolving and legislation will not help AD created uncertainty in Nortje case but subsequent court cases will crystallise ER liability by looking at each set of circumstances Bouwer case highlights a bona fide debtor being discharged by another’s payment to their creditor which enriches the creditor. Unclear if this relates to extended NG. Also consider enrichment lien Right of retention by bona fide possessor for improving another’s property at your own expense Enrichment lien requirements appear the same as enrichment action Brooklyn House case clarified the Gouws case Conclusion Avis will be required to reimburse the repair shop for the amount they have been enriched not for useful and necessary expenses - the amount saved by not having to pay for the repairs themselves = R13 000. Q7 Simon and Jacob are farmer neighbours and Jacob’s farm has a lot of underground water. Simon sinks a borehole on what he believes is his land (near their borders) and there is so much water that he sells the surplus to a Valpre plant in town. After 3 years Jacob discovers Simon’s borehole is not on Simon’s land but is on Jacob’s farm land. Jacob tries to attach the borehole pump as compensation for use of land for 3 years. Simon spent R980 000 on the borehole and equipment. He has sold R2mill worth of water to Valpre at no production cost. His sugar cane crops yielded R820 000 after production costs of R380 000. What are Simon and Jacob’s rights in this instance? (15) Distinguish btn (1) attachment of movable to movable and (2) attachment of movable to immovable Obvious solution is ER claim BUT We have to deal with question of ownership (by whom?) Further distinctions btn possessor and occupier Bona fide and mala fide possessors both have animus domini RSA Law: old actions under Roman and RD law still exist but have been developed by extending ER liability as separate specific actions (not general action for ER as De Vos says) Various categories of person qualify for compensation actions for improvements to another’s property: Bona fide possessor – mistakenly believes they are owner of the thing Reasonableness of belief not debatable Only look a FACT whether he subjectively believed he was owner Bona fide possessor no longer owns attached material De Beers case incorrect in saying BFP retains ownership of materials affixed until he has parted with possession The BFP loses ownership by accessio The BFP can (reasonably) remove improvements while in possession of property under the personal right of ius tollendi (does not mean ownership did not pass to owner of immovable) May not remove improvs. after owner reclaims unless owner unwilling to reimburse BFP Meyer trustees case incorrectly states that a BFP can claim compensation if owner takes steps to evict him. Correct position is….. BFP may remove improvements anytime before real owner reclaims his land BFP ER claim = Only claim for money & materials not for labour & interest on expenses Can claim for loss of income Extent of claim for compensation: 1. Necessary expenses – BFP can claim for all expenses to preserve and protect the property of another (owner’s ER is saved expenses) 2. Useful expenses – BFP can claim for lesser of enhanced value of property or total expenses 3. Luxurious expenses: Usually no claim unless property sold for enhanced price or yield on property increased. Luxurious improvements can be removed if owner does not want to compensate BFP unless removal will cause damage to property BFP has right of retention pending compensation. 2 Reqmnts for ius tollendi: 1. BFP must be in control of property 2. Owner must be unjustifiably enriched at expense of possessor If BFP has given up possession he doesn’t lose his right to compensation Only loses right to retention Successive owners can be subject to an ER claim under ius retentionis ‘cos it is a real right and all subsequent owners are enriched Value of fruit gathered by BFP, less production costs, can be set off against BFP’s claim for compensation BFP compensation claim reduced by value of fruits less production costs Possessor becomes mala fide from moment of realisation possession is unlawful unless exercising ius retentionis Fruits= natural fruit, rent but not interest on expenses and fruits yielded by improvements BFP cannot deduct value of use of property from amount of compensation payable (he thought he was owner) Summary for BFP: An ER claim for compensation (ANG utilis) for useful, necessary and, sometimes, useful improvements Ius retentionis while in possession until compensation paid Ius tollendi (right to remove attachments) while in possession Mala fide possessor position uncertain MFP = knows he is not owner but acts as if he is owner MFP possession is unlawful Bellingham case 1874 allowed MFP compensation for improvements De Beers Mines case 1893 restricted MFP compensation to necessary improvements BUT if owner knew of MFP then MFP had same status as BFP for improvs. Bellingham case preferred ‘cos steers owner’s liability to MFP towards ER action REASON? If MFP only has claim for necessary improvements the owner remains unduly enriched for useful improvements Real purpose of Private law is to BALANCE not PUNISH Therefore the MFP should be in same legal position as BFP iro compensation MFP has right of retention? Bellingham case silent on this but quotes from sources that say “yes” De Beers case expressly denied a MFP a ius retentionis (except where owner knows of MFP presence and is silent) Acton case 1909 says MFP has a lien But series of cases took opposite view JOT Motors case 1984 expressly gave the MFP a ius retentionis but AD did not uphold this decision ‘cos this case dealt with a lawful possessor and we know BFP’s rights in this case Law still uncertain iro MFP’s but there is no valid reason why a MFP should not have rights to compensation, retention,etc IUS TOLLENDI Courts have wide discretion to allow owner to waive ER or to allow MFP to remove the attachments Considerations = permanence, damage caused by removal, costs, usability, etc (pg 108) FRUITS Peens case 1980 held MFP doesn’t obtain ownership of fruits gathered Owner has claim for fruits consumed, disposed of or not consumed Owner doesn’t have to set-off the value of fruits against his ER or possessor’s impoverishment Fruits in MFP’s possession may be vindicated by owner 1. 2. 3. Summary: MFP that uses money or material to protect or improve someone else’s prop. An ER claim for compensation (ANG utilis) for useful, necessary and, sometimes, useful improvements Possibly a ius retentionis while in possession until compensation paid (uncertain) Ius tollendi (right to remove attachments) while in possession in certain circumstances Plenty of authority for equating MFP with BFP Bona fide possessor: Thinks he is the owner Has recourse for useful, necessary and (perhaps) luxurious expenses Has ius retentionis Has ius tollendi Becomes owner of fruit but value offsets ER Mala fide possessor: Knows he isn’t owner Has recourse for useful, necessary and not for luxurious expenses Doubt over ius retentionis Has ius tollendi No right to fruits BFP or occupier: Invalid lease ER lien available BFP not allowed to stay in possession/ occupation ‘cos invalid lease Lessee: Valid lease Restricted by Placaats L...
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