When the recipiens is unable to restore the thing itself or its equivalent, then he or she must return a surrogate or the value of the performance. When the recipiens sold the thing (for instance), he or she must return the purchase price (the amount he or she is still enriched with at the time of the institution of the action). The condictio indebiti being an enrichment action, the recipiens (defendant) may tender the thing in the condition it is at the time of the institution of the action. The same rules apply to the amount the recipiens is still enriched at the time of the action (see Jacques du Plessis “Enrichment”: 378-380). Where the recipiens has lost or disposed of the thing, his or her liability is likewise restricted to the amount of his or her enrichment at the time of the action, except for instances of increased liability. These instances are when the recipiens knows he or she is enriched, when he or she foresees the possibility of his or her enrichment, and when he or she is in mora. Otherwise the notion of “increased liability” takes effect (see Jacques du Plessis “Enrichment”: 384-388). Loss of enrichment (or diminished enrichment) is a good defence against the solvens’ claim for the full value of the transferred property (see Sonnekus “Unjustified Enrichment” 304- 305; Daniel Visser “Enrichment”: 702ff; Jacques du Plessis “Enrichment”: 384). Liability for enrichment lies to the extent of the enrichment, never more. The onus to prove loss of enrichment vests in the recipiens/defendant. Failure to prove loss of enrichment results in liability for the full value of the property.
LCSP 4814 44 In the case of King v Cohen Benjamin and Co (1953 4 SA 641(W) [see discussion by Casebook Enrichment(2) 37-38]) King had drawn a cheque in favour of Benjamin intending it to be kept in trust by the latter (firm of auditors) for a property/leasing project. Benjamin was aware of the project, but distanced itself from it (not having the desire to become involved). Under false pretences that he (Pabst) was the actual beneficiary, Benjamin was moved to endorse the cheque in his favour. In doing so, Benjamin bona fide paid the amount of the cheque to Pabst. King instituted the condictio indebiti against Benjamin endeavouring to recover the amount being paid not owing. Benjamin raised nonenrichment and succeeded with the defence. In the case of African Diamond Exporters v Barclays Bank 1978 3 SA 699(A) at 709D712A(see discussion by Sonnekus “Unjustified Enrichment” 316-318; Daniel Visser “Enrichment” 733ff), the appellant (African Diamond with Bonner as director) raised decrease or extinction of enrichment as defence and succeeded partially. In casu the respondent (Barclays Bank) “by accident” paid out more money than mandated for ($188 601 instead of $18 860) a shipment of diamonds dispatched by African Diamond to a Californian company, Antwerp Distributing (with Kuetgens as director). African Diamond repaid part of the excess mistaken payment ($100 000) and retained the rest ($55 000) as payment for another shipment of diamonds to follow shortly. Kuetgens in the meantime
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