LONG QUESTIONS – FROM TUT201’S 2009 TO 2019
Question 1
Discuss in general (without reference to a specific enrichment action) how the extent of
enrichment liability (or the quantum of the enrichment claim) will be calculated. (10)
Answer
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the
amount the defendant has been enriched, whichever is the lesser. (1) See Study Guide 1, par
1.1.4 and 2.3. The quantum of the enrichment claim is calculated at the time the claim is
instituted. (1)
That means that the defendant is not liable for benefits that he due to his enrichment could
have gained, but didn’t. (1) If the defendant’s enrichment has been reduced or extinguished
before the claim has been instituted, his liability will also be reduced or extinguished. (1) The
onus to prove non-enrichment lies with the defendant. (1) In four instances the quantum will
be calculated sooner, meaning before the date of institution of the action: (a) at the moment
the defendant becomes aware of enrichment (1); (b) at an earlier stage if the defendant should
have known that the benefit wasn’t justified (1); (c) when the defendant fell into mora (1); and
an earlier date if the defendant acted mala fide (1). These exceptions do not apply in the case
of minors. (1)
In quantifying the claim all positive and negative side-effects should be taken into account. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1) See Study
Guide 1, par 3.4. If the defendant spent the money on something he would not have done if it
wasn’t for the enrichment, he can raise the defence of non-enrichment. (1) However, if all or
part of what he spent the money on (eg goods) is still of value and in his hands, he must offer
the goods or the value of the goods to the plaintiff. (1) If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant. (1)
Question 2
A has demanded payment from B of an amount of R50,000 which he believes B is owing. B
has checked his records and has paid the amount in the bona fide belief that the amount is
owed in terms of their contract. Unbeknown to B, his bookkeeper, C had already paid the
amount a week earlier by way of an electronic funds transfer into the account of A. At the time
of the second payment A's account was overdrawn in the amount of R30,000 and was
therefore in credit of R20,000 after the payment. A has taken R15,000 out of his account to
pay his employees their monthly wages. He has also paid R10,000 for a luxury weekend after
realising that his account was in credit. Discuss whether B has a claim against A and, if so,
what he may claim. (10)
Answer
If you encounter a similar type of a question in the exam, you should follow the following steps
in answering the question:
(a) You need first identity if A has a claim and which claim will be relevant in this case. (2)
(b) Discuss the relevant requirements for a successful claim under the action and any
defences under the such a claim. (5)
(c) Apply the requirement of the claim to the facts. (2)
(d) Make a definite conclusion on the question asked. (1)
,(a) Identifying the relevant claim or action B has a claim of unjustified enrichment against A
and the relevant remedy applicable is the condictio indebiti. This action is available where an
unowed debt has been paid due to a justifiable mistake. (1) In this instance A’s enrichment
took place at the expense of B, because B was the person in law who made the payment,
even if C physically made the payment. (1)
(b) Discuss the relevant requirements and possible defences See par. 3.4 of your Study Guide
for the requirements of this action. Briefly discuss each of the requirements:
(i) The party must have transferred something in ownership to another. (1)
(ii) The transfer must have been as a result of a mistake on the part of the transferor that
performance was due. (1)
(iii) The mistake, whether in law or in fact must have been reasonable under the
circumstances. (1)
(iv) As far as defences are concerned, the issue of loss of enrichment crops-up. Paying-off an
overdraft does not diminish enrichment as it constitutes diminishment of a debt. The payment
of wages also does not cause enrichment to diminish. However, the cost of a luxury holiday
can constitute an extinction of enrichment if the receiver of the money did not know or could
not have known that he or she had been enriched (see Study Guide 1, par 2.3). Remember
that an enrichment claim can only be successful if the enrichment still exists in the possession
of the enriched party at the time the claim is lodged. (2)
(c) Applying the requirements to the facts In paying the R50, 000 B was under the mistaken
belief that the amount was owed in terms of their contract while this is not the case. The
mistaken belief under the circumstances is reasonable as B had a bona fide belief that the
amount was owed as they had a contract. (1)
A was initially enriched by an amount of R50, 000 on receipt of the money. The paying-off of
the overdraft does not diminish his enrichment and neither does the payment of wages since
both debts would have had to have been paid at any rate. However, the cost of the luxury
weekend will constitute diminishment of his enrichment, as he probably would not have
incurred this expense if his account had not been credited. (1)
(d) Make a definite conclusion on the question asked B has an enrichment claim against A
amounting to R40, 000 only as the rest of the enrichment amount has been lost on the luxury
holiday. See Study Guide 1, par. 2.2.1.
Question 3
Discuss in general (without reference to a specific enrichment action) how the extent of
enrichment liability (or the quantum of the enrichment claim) will be calculated. (10)
Answer
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the
amount the defendant has been enriched, whichever is the lesser. (1) See Study Guide 1, par
1.1.4 and 2.3. The quantum of the enrichment claim is calculated at the time the claim is
instituted. (1) That means that the defendant is not liable for benefits that he due to his
enrichment could have gained, but didn’t. (1) If the defendant’s enrichment has been reduced
or extinguished before the claim has been instituted, his liability will also be reduced or
extinguished. (1) The onus to prove non-enrichment lies with the defendant. (1) In four
instances the quantum will be calculated sooner, meaning before the date of institution of the
action: (a) at the moment the defendant becomes aware of enrichment (1); (b) at an earlier
stage if the defendant should have known that the benefit wasn’t justified (1); (c) when the
, defendant fell into mora (1); and an earlier date if the defendant acted mala fide (1). These
exceptions do not apply in the case of minors. (1)
In quantifying the claim all positive and negative side-effects should be taken into account. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1) See Study
Guide 1, par 3.4. If the defendant spent the money on something he would not have done if it
wasn’t for the enrichment, he can raise the defence of non-enrichment. (1) However, if all or
part of what he spent the money on (eg goods) is still of value and in his hands, he must offer
the goods or the value of the goods to the plaintiff. (1) If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant. (1)
Question 4
A owns a factory manufacturing steel in a continuous process. His monthly electricity bill
averages R100 000. He just received a letter from the Johannesburg Municipality in which
they threaten to cut his electricity if he doesn’t immediately pay his “arrear account of R300
000”. A knows that there must be a mistake, because his account is paid in full, but also knows
that if there is a disruption in his electricity supply he will suffer severe losses. He pays the
amount immediately and sends a letter of complaint with. Advise A whether he will be able to
reclaim the R300 000 he paid, and with which remedy? In your answer discuss the
requirements for this remedy. (10)
Answer
If you receive a similar type of question in the exams, you should follow the following steps in
answering the question:
(a) You first need to identify the correct unjustified enrichment action. If necessary explain why
another enrichment claim cannot be used. (2)
(b) Then discuss the relevant requirements for a successful claim under the action and any
defences against such claim. (5)
(c) Apply the requirements of the claim to the facts provided. (2)
(d) Make a definite conclusion on the question asked. (1)
(a) Identifying the correct action
The correct action to be instituted by A is the condictio indebiti. (1) This action is available in
instances where a debt not owing was paid. (1) No unlawful, ultra vires or void contract is
relevant here and therefore it seems as if no other condictiones could be applicable.
(b) Requirements for the action and defences against it See Study guide 1, par 3.4 for the
requirements. State each of the requirements:
(i) Transfer of ownership in the form of payment of money or delivery of a specific object (1)
(ii) Payment has to take place under the mistaken belief that the performance was owing. (1)
(iii) The mistake, either a legal or factual mistake, must have been reasonable in the
circumstances (iustus error). (1)
In general a party cannot reclaim performance with the condictio indebiti if he was aware that
the performance wasn’t owing. (1) Such conduct will be regarded as a donation, unless it was
made under threat or protest. (1) (See Study guide 1, par 4.6 and CIR v First National Industrial
Bank Ltd 1990 3 SA 641 (A).)
(c) Applying the requirements to the facts
A made a payment knowingly that the debt wasn’t owing. For A to succeed with the condictio
indebiti against the Johannesburg Municipality in these circumstances he, firstly, had to prove
that he didn’t owe the Municipality the R300 000. (1) Secondly, that the payment was made
Question 1
Discuss in general (without reference to a specific enrichment action) how the extent of
enrichment liability (or the quantum of the enrichment claim) will be calculated. (10)
Answer
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the
amount the defendant has been enriched, whichever is the lesser. (1) See Study Guide 1, par
1.1.4 and 2.3. The quantum of the enrichment claim is calculated at the time the claim is
instituted. (1)
That means that the defendant is not liable for benefits that he due to his enrichment could
have gained, but didn’t. (1) If the defendant’s enrichment has been reduced or extinguished
before the claim has been instituted, his liability will also be reduced or extinguished. (1) The
onus to prove non-enrichment lies with the defendant. (1) In four instances the quantum will
be calculated sooner, meaning before the date of institution of the action: (a) at the moment
the defendant becomes aware of enrichment (1); (b) at an earlier stage if the defendant should
have known that the benefit wasn’t justified (1); (c) when the defendant fell into mora (1); and
an earlier date if the defendant acted mala fide (1). These exceptions do not apply in the case
of minors. (1)
In quantifying the claim all positive and negative side-effects should be taken into account. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1) See Study
Guide 1, par 3.4. If the defendant spent the money on something he would not have done if it
wasn’t for the enrichment, he can raise the defence of non-enrichment. (1) However, if all or
part of what he spent the money on (eg goods) is still of value and in his hands, he must offer
the goods or the value of the goods to the plaintiff. (1) If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant. (1)
Question 2
A has demanded payment from B of an amount of R50,000 which he believes B is owing. B
has checked his records and has paid the amount in the bona fide belief that the amount is
owed in terms of their contract. Unbeknown to B, his bookkeeper, C had already paid the
amount a week earlier by way of an electronic funds transfer into the account of A. At the time
of the second payment A's account was overdrawn in the amount of R30,000 and was
therefore in credit of R20,000 after the payment. A has taken R15,000 out of his account to
pay his employees their monthly wages. He has also paid R10,000 for a luxury weekend after
realising that his account was in credit. Discuss whether B has a claim against A and, if so,
what he may claim. (10)
Answer
If you encounter a similar type of a question in the exam, you should follow the following steps
in answering the question:
(a) You need first identity if A has a claim and which claim will be relevant in this case. (2)
(b) Discuss the relevant requirements for a successful claim under the action and any
defences under the such a claim. (5)
(c) Apply the requirement of the claim to the facts. (2)
(d) Make a definite conclusion on the question asked. (1)
,(a) Identifying the relevant claim or action B has a claim of unjustified enrichment against A
and the relevant remedy applicable is the condictio indebiti. This action is available where an
unowed debt has been paid due to a justifiable mistake. (1) In this instance A’s enrichment
took place at the expense of B, because B was the person in law who made the payment,
even if C physically made the payment. (1)
(b) Discuss the relevant requirements and possible defences See par. 3.4 of your Study Guide
for the requirements of this action. Briefly discuss each of the requirements:
(i) The party must have transferred something in ownership to another. (1)
(ii) The transfer must have been as a result of a mistake on the part of the transferor that
performance was due. (1)
(iii) The mistake, whether in law or in fact must have been reasonable under the
circumstances. (1)
(iv) As far as defences are concerned, the issue of loss of enrichment crops-up. Paying-off an
overdraft does not diminish enrichment as it constitutes diminishment of a debt. The payment
of wages also does not cause enrichment to diminish. However, the cost of a luxury holiday
can constitute an extinction of enrichment if the receiver of the money did not know or could
not have known that he or she had been enriched (see Study Guide 1, par 2.3). Remember
that an enrichment claim can only be successful if the enrichment still exists in the possession
of the enriched party at the time the claim is lodged. (2)
(c) Applying the requirements to the facts In paying the R50, 000 B was under the mistaken
belief that the amount was owed in terms of their contract while this is not the case. The
mistaken belief under the circumstances is reasonable as B had a bona fide belief that the
amount was owed as they had a contract. (1)
A was initially enriched by an amount of R50, 000 on receipt of the money. The paying-off of
the overdraft does not diminish his enrichment and neither does the payment of wages since
both debts would have had to have been paid at any rate. However, the cost of the luxury
weekend will constitute diminishment of his enrichment, as he probably would not have
incurred this expense if his account had not been credited. (1)
(d) Make a definite conclusion on the question asked B has an enrichment claim against A
amounting to R40, 000 only as the rest of the enrichment amount has been lost on the luxury
holiday. See Study Guide 1, par. 2.2.1.
Question 3
Discuss in general (without reference to a specific enrichment action) how the extent of
enrichment liability (or the quantum of the enrichment claim) will be calculated. (10)
Answer
In principle the plaintiff is allowed to claim the amount he has been impoverished, or the
amount the defendant has been enriched, whichever is the lesser. (1) See Study Guide 1, par
1.1.4 and 2.3. The quantum of the enrichment claim is calculated at the time the claim is
instituted. (1) That means that the defendant is not liable for benefits that he due to his
enrichment could have gained, but didn’t. (1) If the defendant’s enrichment has been reduced
or extinguished before the claim has been instituted, his liability will also be reduced or
extinguished. (1) The onus to prove non-enrichment lies with the defendant. (1) In four
instances the quantum will be calculated sooner, meaning before the date of institution of the
action: (a) at the moment the defendant becomes aware of enrichment (1); (b) at an earlier
stage if the defendant should have known that the benefit wasn’t justified (1); (c) when the
, defendant fell into mora (1); and an earlier date if the defendant acted mala fide (1). These
exceptions do not apply in the case of minors. (1)
In quantifying the claim all positive and negative side-effects should be taken into account. (1)
Interest earned on money in the hands of the defendant before litis contestatio cannot be
claimed by the plaintiff, (1) but after mora the plaintiff can claim mora interest. (1) See Study
Guide 1, par 3.4. If the defendant spent the money on something he would not have done if it
wasn’t for the enrichment, he can raise the defence of non-enrichment. (1) However, if all or
part of what he spent the money on (eg goods) is still of value and in his hands, he must offer
the goods or the value of the goods to the plaintiff. (1) If the goods are more valuable than the
impoverishment, the difference should be paid to the defendant. (1)
Question 4
A owns a factory manufacturing steel in a continuous process. His monthly electricity bill
averages R100 000. He just received a letter from the Johannesburg Municipality in which
they threaten to cut his electricity if he doesn’t immediately pay his “arrear account of R300
000”. A knows that there must be a mistake, because his account is paid in full, but also knows
that if there is a disruption in his electricity supply he will suffer severe losses. He pays the
amount immediately and sends a letter of complaint with. Advise A whether he will be able to
reclaim the R300 000 he paid, and with which remedy? In your answer discuss the
requirements for this remedy. (10)
Answer
If you receive a similar type of question in the exams, you should follow the following steps in
answering the question:
(a) You first need to identify the correct unjustified enrichment action. If necessary explain why
another enrichment claim cannot be used. (2)
(b) Then discuss the relevant requirements for a successful claim under the action and any
defences against such claim. (5)
(c) Apply the requirements of the claim to the facts provided. (2)
(d) Make a definite conclusion on the question asked. (1)
(a) Identifying the correct action
The correct action to be instituted by A is the condictio indebiti. (1) This action is available in
instances where a debt not owing was paid. (1) No unlawful, ultra vires or void contract is
relevant here and therefore it seems as if no other condictiones could be applicable.
(b) Requirements for the action and defences against it See Study guide 1, par 3.4 for the
requirements. State each of the requirements:
(i) Transfer of ownership in the form of payment of money or delivery of a specific object (1)
(ii) Payment has to take place under the mistaken belief that the performance was owing. (1)
(iii) The mistake, either a legal or factual mistake, must have been reasonable in the
circumstances (iustus error). (1)
In general a party cannot reclaim performance with the condictio indebiti if he was aware that
the performance wasn’t owing. (1) Such conduct will be regarded as a donation, unless it was
made under threat or protest. (1) (See Study guide 1, par 4.6 and CIR v First National Industrial
Bank Ltd 1990 3 SA 641 (A).)
(c) Applying the requirements to the facts
A made a payment knowingly that the debt wasn’t owing. For A to succeed with the condictio
indebiti against the Johannesburg Municipality in these circumstances he, firstly, had to prove
that he didn’t owe the Municipality the R300 000. (1) Secondly, that the payment was made
