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PVL3704 EXAM PACK.
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Exam of 189 pages for the course PVL3704 at University of South Africa (PVL3704 EXAM PACK.)
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PVL3704 EXAM PACK
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Pvl3704 past papers
Oct/Nov 2005
ANSWER ALL THE QUESTIONS
QUESTION 1
A owed B an amount of R12 million. A clerk in A’s employ inadvertently used the bank
account number of another creditor, X, when authorising its bank (ABSA) to make an
electronic payment to B. The money was paid into the bank account of X with First
National Bank instead of the account of B. At the time of payment X’s account was
dormant. When X found out about the undue payment, he withdrew the money and
deposited it in an interest bearing account with Standard Bank. A only discovered the
mistake 2 months later. A now claims the money plus interest from X. Advise X on the
following issues: has X been enriched and at whose expense; if so, which is the
appropriate enrichment action to use; what are the requirements for this action; does X
have any possible defences against such a claim; and is A entitled to claim the interest
earned on the money in the savings account? (20)
QUESTION 2
D a German tourist is on holiday in South Africa. He has rented a vehicle from Rent-A-
Wreck in Johannesburg. While travelling through Springbok the vehicle broke down. D
requested Springbok Motors to inspect the vehicle and repair it. After two days had
expired, D rented another vehicle in Springbok from Avis and has since left the country.
Rent-A-Wreck is now claiming the vehicle from Springbok Motors who in the mean time
has spent 20 hours at R150 an hour on the repair of the vehicle. It has also fitted parts to
the value of R10,000 to the vehicle. Advise Springbok Motors whether it has any claim
against Rent-a-Wreck and of any other defences it may have against Rent-A-Wreck’s
claim. (20)
The student must distinguish between the various enrichment actions. The two pertinent action
here are the true management of affairs action (actio negotiorum gestorum contraria) and the
extended management of affairs action (actio negotiorum gestorum utilis) (2)
Discussion of the requirements for the actio negotiorum gestorum SG 1 page 83-84 (3)
Discussion of the requirements for the extended management of affairs action (actio
negotiorum gestorum utilis) SG 1 p 85-86 (4)
This is an instance where a party is acting in his own interest in the belief that he is acting in the
interest of the other party (2)
Discussion of Gouws v Jester Pools and Absa Bank v Stander SG 1 p 92-93 (4)
Van Zyl’s view point discussed (2)
Discussion of what can be claimed – the lesser of the enrichment or the impoverishment. In this
case B is enriched with the value of the repairs whereas C is impoverished with the value of its
expenses. Discussion on whether C can claim the value of its own work – generally not. (3)
Discussion of C’s right of retention is optional, not actually asked but relevant. (3)
GSM
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QUESTION 3
Briefly discuss the field of application and the requirements of the condictio causa data
causa non secuta. (10)
Roman law:
In Roman law the condictio causa data causa non secuta was used to reclaim money or things
transferred in ownership in the following cases:
ius poenitentiae .
When a party had performed in terms of the forms do ut des (I deliver so that you can deliver) or
do ut facias (I deliver so that you can do) of an innominate real agreement (an agreement that
would only be valid and enforceable once performance had taken place) and thereafter, before
counterperformance had taken place, reclaimed the thing delivered in terms of his ius
poenitentiae. The law gave the party performing the opportunity to reconsider before the other
party delivered the counterperformance. This right to rescind in such a case was called the ius
poenitentiae. Thus it appears that the ius poenitentiae of the party who had, for example,
delivered the thing in terms of the do ut des form of the innominate real agreement, was granted
by virtue of the fact that such party had not delivered on the grounds of a valid causa, since the
contract was created only by the delivery. If the person who performed first in terms of the
innominate real agreement decided not to continue with the agreement before
counterperformance had taken place, he could have relied on his ius poenitentiae, rescinded
the contract and reclaimed his performance with the condictio causa data causa non secuta.
The ius poenitentiae fell away if counterperformance became impossible owing to an act of God
(vis maior) or chance.
Roman-Dutch law:
In Roman-Dutch law all contracts were consensual and real contracts no longer appeared. The
effect was that the condictio in question was instituted in the case of consensual contracts do ut
des and do ut facias in the case of (1) cancellation owing to breach of contract by the other
party to the contract, and (2) the fulfilment of a resolutive condition. Because all contracts were
consensual in
Roman-Dutch law, the ius poenitentiae of Roman law fell away. Therefore, a party could no
longer, after he had performed but before the other party had done so, have changed his mind
and reclaimed his performance.
Application in South African law:
South African law of contract has developed to the point that contractual remedies now provide
for circumstances where the condictio causa data causa non secuta used to be implemented
This action is used to reclaim performance. There is uncertainty about the field of application of
this action in modern South African law. The common feature in case law where this action has
been used seems to be where transfer of a thing was made or performance rendered on the
basis of some future event taking place or not taking place (a so-called causa futura). When the
future event does not happen (or does happen in the case of resolutive conditions), the causa
for the transfer falls away and the performance rendered is reclaimed with this action. On this
basis the plaintiff may possibly institute the condictio causa data when he has delivered a thing
to the defendant by virtue of:
1. a resolutive condition which is fulfilled
2. a suspensive condition which is not fulfilled
3. a modus which is disregarded
4. an assumption which is not fulfilled
A. Conditions can take one of two forms in contracts and wills:
GSM
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1. Resolutive conditions If the future uncertain event takes place or the condition is fulfilled, it
causes the contract to come to an end or the testamentary disposition to become void.
2. Suspensive conditions have the effect of suspending some or all of the rights and obligations
under the testament or will until the occurrence of an uncertain future event.
B. Unfulfilled assumptions
De Vos refers only to future assumptions in the controversy of the exact nature of the
assumptions. In Fourie an obiter statement distinguished between assumptions and conditions.
An assumption can only relate to the facts of the present or the past, but not the future. If the
assumption is true the contract based on it is immediately valid and binding; if it is false the
contract is immediately void in which case the appropriate enrichment action is the condictio
indebiti because the contract is void from the beginning. An assumption which relates to the
future is no assumption but a resolutive condition.
C. Modus
Where a testamentary disposition is made subject to a modus there is an obligation on the
legatee or heir to comply with the provisions of the modus. Where the disposition is revoked
owing to noncompliance, the disposition can be reclaimed with this remedy.
Breach of contract
De Vos: is of the opinion that the condictio causa data no longer plays a part in our law in the
case of recisission on the ground of breach of contract, but that the innocent party would make
use of contractual remedies. AD confimed De Vos view in Baker v Probert.
(4) Name the three applications of the condictio causa data causa non secuta in South
African law.
There is a great deal of uncertainty about the field of application of this action in modern South
African law. Upon analysis the common feature of all the examples where this action has been
used seems to be cases where transfer of a thing was made or performance rendered on the
basis of some future event taking place or not taking place (a so-called causa futura). When the
future event does not happen (or does happen in the case of resolutive conditions), the causa
for the transfer falls away and the performance rendered is reclaimed with this action. On this
basis the plaintiff may possibly institute this condictio when he has delivered a thing to the
defendant by virtue of:
. A resolutive condition which is fulfilled
. A suspensive condition which is not fulfilled
. A modus which is disregarded
. An assumption which is not fulfilled
The importance of the decision in Baker v Probert 1985 (3) SA 429 (A) for the application
of the condictio causa data causa non secuta in South African law.
Contractual remedies after breach of contract:
De Vos (156 et seq) holds the view that this condictio no longer plays a part in our law in the
case of rescission on the grounds of breach of contract, but that the innocent party in such a
case would make use of contractual remedies. De Vos bases his view on the fact that, for the
purposes of rescission on the grounds of breach of contract, a distinction was drawn in Roman-
Dutch law between contracts which were innominate real contracts in Roman law (in these
contracts the right of rescission was wider and the condictio was used) and contracts which
were consensual even in Roman law (in these contracts the right of rescission was more limited
and a contractual action was used). This distinction, says De Vos, no longer holds in our law,
and consequently this condictio no longer plays a part in regard to cancellation on the ground of
breach of contract. The Appellate Division confirmed this approach in Baker v Probert
1985 (3) SA 429 (A) 438–439
GSM
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