Union Goverment v Gowar : DURESS : Performance under duress formed a new development in the form of an exception to the error/mistake requirement: In this instance payment was not done in the mistaken belief that it is due BUT payment was made because there was no other way out, well aware that it was not due Underline of exception is that performance was made unwillingly. When debt is paid knowing it is not due = onus rests on the plaintiff to prove that the performance was made under duress or protest. If plaintiff cannot discharge onus, then it is presumed to have been intended and CI will not be applicable.
Type of mistake? Until 1992 (Willis Faber (A)) it had been held that only a mistake of fact would allow a plaintiff to use the CI. A mistake of law excluded the operation of the CI. In 1992 the Appeal Court brought an end to the distinction error in fact or law in the case of Willis Faber!! [Judge: “legal policy would seem to demand, the abolition of a principle that is manifestly unjust in the majority of cases”] An error in itself is not sufficient to ensure the success of the CI, the error has to be excusable as well! Hefer JA is of the opinion that an error of law also has to be reasonable (excusable) to qualify as a mistaken belief. Hefer JA did not state which circumstances will be seen as excusable BUT stated that if the plaintiff’s conduct is so “slack” that he deserves no protection in the eyes of the court, then no such relief will be given by the court. Judge goes further and state that excusability will differ from case to case.
You've reached the end of your free preview.
Want to read all 12 pages?
- Fall '18
- Criminal defenses, condictio indebiti, Totalizator Agency Board