o defences like non- enrichment and estoppel will be more than enough to limit the scope of enrichment liability. Sonnekus: rejects the excusable error requirement for the condictio indebiti. o 1- inexcusable error can function as defence at the disposal of the enrichee to be raised by the same.
o 2- excusable mistake can be a positive requirement to be proved by the claimant o 3- court may in discretion decide on the excusability of mistake. 5. EXTENT OF ENRICHMENT LIABILITY purpose of enrichment action is to restore property which had been transferred sine causa, whilst the owner’s rei vindicatio doesnt find application. Point of departure: re cipiens having received property or money unduly is obliged to return in terms of condictio indebit. o Recipiens must restore the transferred property itself or the case of res fungibiles, equivalent quantity of the thing. o property itself is returned by the recipiens, its fruits (less productionosts) and improvements (less expenditure) must be returned with it to the solvens (sien) Interest-received on a sum of money paid without it being owed not considered to be fruit and needs not be restored. Kudu Granite Operations v Caterna: o interest on unliquidated indebtness (like enrichment) can be claimed from the date of demand / summons and is not dependent on the default or mora of the debtor to take effect. o rate 15,5% per year from service of the summons granted. Mndi v Malgas- o debtor (Malgas) had discharged his debt at a usurious (30% per month) rate enriching the creditor unjustly. o Q= wasnt about the merits, but quantum of the claim mero motu raised by the provincial division on appeal. o Court: it be money or res fungibiles, the recipiens must return an equivalent quantity of it to the solvens recipiens unable to restore the thing itself or equivalent, they must return a surrogate or the value of the performance o sold the thing: r eturn the purchase price (the amount still enriched with at the time of the institution of the action) o 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. lost or disposed: o liability is likewise restricted to the amount of his or her enrichment at the time of the action. o except for instances of increased liability. o Instances are when the recipiens know they enriched, when they can foresee the possibility of their enrichment, and is in mora. Loss of enrichment-as defence o onus to prove loss of enrichment vests in the recipiens/defendant o Failure: results in liability for the full value of the property. King v Cohen Benjamin and Co: o 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 o Benjamin was aware of the project, but distanced itself from it.
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- Fall '18