oa Fundamina : A Journal of Legal History - The re-establishment of equity and fairness as the founding principles of liability for unjustified Enrichment in South African law
In recent developments in the South African law of unjustified enrichment a view has arisen that the classical Roman-law basis of enrichment should be radically overhauled and perhaps discarded in favour of a new set of categories of enrichment liability. If this view were accepted, enrichment would be elevated to the status of a third branch of the law of obligations, alongside contract and delict. In the process, the requirement of impoverishment would be abandoned, the primacy of the principles of equity and fairness would be lost, and the old Roman law condictiones discarded altogether. The main proponent of this view is Daniel Visser in his book Unjustified Enrichment. This article sets out to show that classical Roman law provides a perfectly adequate base on which to develop the law of unjustified enrichment. It also emphasises that equity and fairness, which were the first principles of liability for unjustified enrichment in classical Roman law, should be retained. This is done using the legal historical method to analyse the four central texts on unjustified enrichment in the Digest, and more especially, to read them in their true context in the original works of the classical Roman jurists, using the Palingenesia of Otto Lenel. This analysis shows that classical Roman law created a more sophisticated basis for the law of unjustified enrichment than is reflected in the Corpus iuris civilis or than Roman law has been generally been credited with. Having established this, the paper considers the strong criticism levelled at Visser's book by Judge Carole Lewis of the Supreme Court of Appeal, and her rejection of his argument that the landmark case of McCarthy Retail v Shortdistance Carriers CC represents a move towards the creation of a general action for enrichment liability in South Africa. Jean Sonnekus' scholarly work, Unjustified Enrichment in South African Law, which argues for the retention of the traditional approach to unjustified enrichment, is also considered. In addition, two major problem areas in the law of enrichment are discussed. The first of these is the relaxing of the principle of reciprocity in the law pertaining to contracts and enrichment, and the second is the relaxation of the par delictum rule. In both instances the paper argues that there is a far greater need to counter these trends than to start tinkering with classical Roman civil law and replacing it with a totally new set of legal principles transplanted whole and undigested from the continental, codified legal systems of Europe.
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