With apologies for cross-posting, I post this on behalf of Eric--
Lionel
The Edinburgh Centre for Private Law is organising a small conference on "New Directions in Unjustified Enrichment: Learning from South Africa?" in the afternoon of Friday
24 January 2014.
Our main speakers will be Jacques du Plessis (Stellenbosch) and Helen Scott (Cape Town). Responses will be given by Andy Burrows (Oxford) and Hector MacQueen (Edinburgh/SLC). The ambition is to revisit the absence of basis vs unjust factors debate in the light of two recent South African books each trying to make a fresh contribution (J du Plessis, The South African Law of Unjustified Enrichment, Juta, 2012 and H Scott, Unjust Enrichment in South African Law: Rethinking Enrichment by Transfer, Hart, 2013). Though the starting point of the event will be South African law, the aim is to make it relevant to enrichment scholars more generally: both from other mixed jurisdictions and from the common-law tradition. I am therefore advertising it more widely than the usual ECPL list, hoping in particular that a good number of English scholars will join us for the occasion.
The event will be in the Raeburn Room, the capacity of which is limited. If you are interested in attending, please email me. Below is the event blurb; further details will be advertised nearer the time.
With kind regards
Eric Descheemaeker
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Eric Descheemaeker (Dr)
Lecturer in European Private Law
School of Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL (UK)
Tel: +44 (0)131 650 2054
Fax: +44 (0)131 650 2005
Email: eric.descheemaeker@ed.ac.uk
http://ssrn.com/author=604203
Eric Descheemaeker (Dr)
Lecturer in European Private Law
School of Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL (UK)
Tel: +44 (0)131 650 2054
Fax: +44 (0)131 650 2005
Email: eric.descheemaeker@ed.ac.uk
http://ssrn.com/author=604203
New Directions in Unjustified Enrichment: Learning from South Africa?
The South African law of enrichment is still dominated by categories that originated in Roman law. The most important of these are the condictiones (the condictio indebiti, condictio ob turpem vel iniustam
causam etc). These are supplemented by actions awarded to those who improve another’s property, or who pay another’s debts (the extended action of the negotiorum gestor etc). The development of these categories and actions in South African law has
been incremental and limited. Until recently, barring a casebook, there was only one full-length work devoted to the subject (Wouter De Vos’s Verrkyingsaanspreeklikheid in die Suid-Afrikaanse Reg), and that adhered closely to these ancient categories.
However, the last decade has seen the publication of a number of new books on enrichment liability: in particular, Danie Visser’s Unjustified Enrichment (Juta 2008), Jacques du Plessis’s The South African Law of Unjustified Enrichment (Juta 2012)
and most recently Helen Scott’s Unjust Enrichment in South African Law: Rethinking Enrichment by Transfer (Hart 2013). These works are similar in that each has attempted to recast the ancient Roman forms of action as causes of action, and to organise
these causes of action into a coherent system. But they differ profoundly in their approaches to both aspects of this task.
Like Visser, Du Plessis takes an essentially civilian approach to the law of enrichment: theirs is a law of unjustified enrichment. In the context of enrichment by transfer in particular this means that the condictiones apply
to certain typical situations where enrichment is retained without legal ground – usually because it can be said that the transfer was made for a purpose which failed. Of central importance to this account is the condictio indebiti. Here the point
of departure in deciding whether to award restitution is the fact that the transfer failed to achieve the purpose of fulfilling an obligation. It is recognised that further considerations may influence the imposition of liability, but it is questioned whether
it is necessarily helpful to describe these considerations in terms of the conceptual structure of ‘unjust factors’ derived from English law. The remaining cases are then dealt with according to the typology of imposed enrichment (cases of unauthorised improvement
of another’s property and payment of another’s debts) and enrichment by taking from another/by infringing another’s right.
However, Scott argues that while the absence of a legal ground is a necessary condition for restitution, it is only one element of the restitutionary claim. Scott takes as her focus those instances of enrichment by transfer
in which the absence of legal ground approach has the strongest claim, namely, those classified as instances of the condictio indebiti, seeking to show that in all such instances it is necessary for the plaintiff to demonstrate not only the absence
of his liability to transfer but also a specific reason for restitution or unjust factor such as mistake, compulsion or incapacity. Furthermore, the book explores the reasons for the rise of unjust factors in South African law, attributing this development
in part to the influence of the Roman-Dutch restitutio in integrum, an extraordinary remedy that has historically operated independently of the established enrichment claims of the civilian tradition, and which even now remains imperfectly integrated
into the substantive law of enrichment in South Africa. She seeks, further, to defend this mixed approach in principled terms, and advocates the rationalisation of the causes of action comprised within the condictio indebiti on this basis. Again, Visser
and Du Plessis do not accept that an unjust factors approach is of value in dealing with these cases.
The relevance of the views expressed in these debates extends beyond the question of the most appropriate approach for representing and developing South African enrichment law. At the heart of these debates are key questions
about the different approaches to enrichment liability per se.