Enrichment 62ff], confirmed in Minister van Justisie v Jaffer 1995 1 SA 273(A) at 279), it had been consistently held (due to the influence of the German Pandectists and also a misleading headnote in Rooth v The State ((1888)2 SAR 259), that only a mistake of fact (error facti) would allow the solvens to avail himself or herself of the condictio indebiti. A mistake of law (error iuris) excluded the operation of the condictio indebiti. As a consequence, many exceptions had developed to bypass the strict application of the rule (see Sonnekus “Unjustified Enrichment” 260- 266; Daniel Visser “Enrichment” 290-301): [Note. The following exceptions (paragraphs (a) to (c)) have become redundant for purposes of the error requirement, because the Supreme Court of Appeal decided in Willis Faber (1992) to abandon the distinction between errors of law and fact, and may thus be ignored. Paragraphs (d) and (e) remain valid and can be read once again] a) In Carlis v McCusker (1904 (TS)), for example, the court decided that when transfer took place in terms of a contract for sale, and it turned out that the contract was void because the formalities were not complied with, reparation could nevertheless be
LCSP 4814 37 claimed with the condictio indebiti. Without determining whether the solvens was aware of the invalidity of the contract and that he or she performed in error of law, the relief was granted. All that was required from the solvens to claim relief was to argue in his or her pleadings that the recipiens was “unwilling and unable” to perform. The case had led to much debate, but fortunately the legislator came to the rescue by enacting the Alienation of Land Act 68 of 1981. A statutory enrichment action is created by section 28(1) of the Act to assist the “buyer” and “seller” of immovable property who performed partially or fully in terms of an agreement of sale which lacks the necessary formalities. This is a developed enrichment action, because damaging and beneficial side-effects, like interest, compensation for occupation and use, improvements and damages caused, are taken into account in assessing the amount of enrichment. When the parties to the contract have performed fully in terms of the void contract lacking the necessary formalities, section 28(2) stipulates that the contract is considered to be fully completed and that no enrichment action will vest. This so-called rule in Wilken v Kohler was confirmed by Brand JA in Legator McKenna v Shea 2010 1 SA 35 (HHA): [par 23-25], but does not apply to illegal contracts. See discussion on this topic by Jacques du Plessis “Enrichment”: 162-163. Casebook Enrichment(3) 140-141 makes the remark (p 141 note (b)) that the rule in Carlis v McCusker (as it had been confirmed in an obiter judgment in Wilken v Kohler 1913 AD 135) might not have been laid to rest by the statute, because it was recently resurrected by a minority of Judges of Appeal in Wilkens NO v Bester 1997 3 SA 347(SCA) at 362D-H.
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