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Summary ASSIGNMENT 1 SEMESTER 2
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ENRICHMENT LIABILITY ANDESTOPPEL
PVL3704
Dawakee, Neelam N
, Question 1
The correct action to be instituted by A is the condictio indebiti. This is an action in
civil law whereby a plaintiff may recover what he has paid the defendant by mistake.
This action is available in instances where a debt not owing was paid. No unlawful,
ultra vires or void contract is relevant here and therefore it seems as if no other
condictiones could be applicable.
Requirements for the action and defences against it
i. There has to be a transfer of ownership in the form of payment of money
or delivery of a specific object to the party.
ii. The Payment has to take place under the erroneous belief that the party
was owing.
iii. The error, either a legal or factual error, must have been reasonable in the
circumstances (iustus error). 1 An error is iustus if the contract denier did
not induce the contract assertor reasonably to believe that the contract
denier had assented to the agreement.2
In general, a party cannot reclaim performance with the condictio indebiti if he
was aware that the performance wasn’t owing. Such conduct will be regarded as
a donation, except if it was made under threat or protest. Refer to CIR v First
National Industrial Bank Ltd 1990 3 SA 641 (A).
Applying the requirements to the facts
(A) made a payment knowingly that he was not owing or responsible for the debt
that was outstanding in order for (A) to succeed with the condictio indebiti against
the Johannesburg Municipality the following circumstances (A) has to prove:
1. (A) did not owe the Municipality the R300 000 electricity bill.
2. (A) made the payment involuntarily under the threat that the electricity supply
will be suspended if payment wasn’t made and this would negatively effect (A)
business and he would suffer severe loss.
3. (A) protested against the amount to be paid to the municipality and during the
time of of payment (A) had sent letter of complaint to the municipality.
1
https://en.wikipedia.org/wiki/Condictio_indebiti
2
https://heinonline.org/HOL/LandingPage?handle=hein.journals/tyromhldre67&div=39&id=&page=
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