n Stellenbosch Law Review = Stellenbosch Regstydskrif - The protesting dominus : a reconsideration in the light of German law
|Article Title||The protesting dominus : a reconsideration in the light of German law|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Publication Date||Jan 2009|
|Pages||517 - 532|
Under South African law, someone who manages another's affairs (the gestor) is apparently awarded an enrichment action against such a person the (dominus) where the former has acted against the express wishes of the latter (domino prohibente). It is questionable though, whether sufficient support exists for this claim in the case law, and whether it is desirable when judged from the perspective of the policies underlying negotiorum gestio. However, comparison with German law suggests that the prevention of unjustified enrichment would, on its own, provide sufficient justification for the provision of such a remedy in the context of performance of another's obligation. It is suggested that, assuming that South African law does allow a gestor an enrichment action where he has performed the obligation of another domino prohibente, this system should follow the German example and provide more concrete protection to the dominus by borrowing protective rules from the law of cession and the general principles of unjustified enrichment.
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