Turpis persona tested subjectively. Actual knowledge of illegality required. Plaintiff need not tender to return what he received if defendant would have been precluded from claiming by the par delictum rule. CONDICTIO CAUSA DATA CAUSA NON SECUTU Do ut des : I deliver so that you can deliver Do ut facias : I deliver so that you can do
- Innominate real agreement (only valid once performance takes place) Roman Law Roman-Dutch Law SA Law Used to reclaim money and things in ff cases: (1) ius poenitentiae right to rescind – claim before counter-perform. (2) breach of contract other party not fulfil obligation to counterclaim – rescind with condictio . (3) resolutive condition One party delivered thing i.t.o. contractual resolutive condition and uncertain future event took place. Content of claim Either thing delivered + fixtures and fruits or payment of value of these things Interest on money not reclaimed Defendant entitled to compensation for necessary and useful improvements. Remove luxury improvements. No action to defendant for compensation for improvements. Exception doli – refuse to restore until compensated. No claim to recover value of factum Undeveloped. All contracts consensual – no real contracts appeared. Instituted in cases of consensual contracts do ut des and do ut facias in case of (1) Cancellation owing to breach (2) Fulfilment of resolutive condition Ius poenitentiae fell away – no longer reclaim performance before other party counter- performed (change his mind. Uncertainty Where transfer of thing made and performance rendered on basis of future event taking place or not taking place. Claim if delivered thing to defendant by virtue of: (1) Resolutive condition (fulfilled) (2) Suspensive condition (not fulfilled) (3) Modus disregarded (4) Assumption not fulfilled. SUSPENSIVE AND RESOLUTIVE CONDITIONS Resolutive : Hang like sword over head of parties affected by contract. Once uncertain event takes place / condition fulfilled – contract comes to an end. Suspensive : Suspends rights and obligations until occurrence of an uncertain future event. Unfulfilled Assumptions : A fact which the parties elevate to the basis of their contract Relates to the facts of the present or past (not the future)
Modus : Obligation created in contracts of donations or in wills Non-compliance – disposition may be reclaimed by executor or heirs. Breach of contract Condictio no longer plays part. Use contractual remedies Confirmed in Baker v Probert . CONDICTIO SINE CAUSA SPECIALIS Only applied where no other condictiones can find application In Roman law distinguish between condictio sine causa specialis and condictio sine causa generalis . The general condictio is an alternative to any of the three previous condictiones , could be used in the place of any of the three as long as one of them could have been instituted. The formula was less complicated.
You've reached the end of your free preview.
Want to read all 24 pages?
- Fall '17
- Mr. K.A. Seanego & Ms HM Trytsman
- Bona fide, Decrease