succeeded in claiming a performance made ultra vires (unauthorised). The juristic person (presumably) bestowed a gift in the mistaken (legal) belief that management had the capacity to do so or (according to Visser) in the mistaken belief that performance was due. The juristic person suffered from a lack of capacity to act, but (analogous to the position of the minor) had no difficulty in restoring the gift with the condictio indebiti. See the decision of Bowman, De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd 1997 2 SA 35(A) [discussed by Casebook Enrichment(3) 126-130] for a confirmation of Rulten and Willers pertaining to the representative who wishes to (in fact, is able to) restore ultra vires payments with the condictio indebiti. See Jacques du Plessis “Enrichment”: 148-151. See also Daniel Visser “Enrichment” 396-413, referring to the recovery of wrongly extracted taxes. A more contentious issue (see inter alia Van der Walt 1966 THRHR 220: 226-230; Visser 1988 THRHR 492: 504-507; Horak 1989 De Rebus 77-78) had been whether the third element of the condictio indebiti, namely payment in the mistaken belief, was limited to an error of law or error of fact. Until the case of Willis Faber Enthoven v Receiver of Revenue (1992 4 SA 202 (A) [discussion by Casebook Enrichment (3) 110-117; Scott: Rethinking 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
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