n Stellenbosch Law Review = Stellenbosch Regstydskrif - The potential role of a general enrichment action
|Article Title||The potential role of a general enrichment action|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Publication Date||Jan 2009|
|Pages||454 - 467|
In light of the fact that the Supreme Court of Appeal's "prospective recognition" of a general enrichment action in McCarthy Retail (Pty) Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA) is likely to be confirmed only after this issue has been properly argued in an appropriate case, this article takes the opportunity again to make the case for such an action and to give some idea of what its scope might be.
It argues that a general action should be recognized because it amplifies the ability of our law of obligations to correct injustices that arise between individuals, which, at present, are tolerated because the reach of the specific enrichment actions is too restricted, and because the neither the law of contract nor the law of delict is adapted to respond appropriately to these injustices. It argues, on the one hand, that the action must be subsidiary to the existing enrichment actions in order that its scope will not be unnecessarily wide, but also argues, on the other hand, that its elements must to a certain extent be flexible to ensure that its scope is not unduly limited.
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