PVL3704 EXAM PACK ( ( ) EXAM MEMOS TOGETHER WE CAN PASS SEMESTER 2 2020

QUESTION 1 The plaintiff is allowed to claim the amount he has been impoverished, or the amount the defendant has been enriched, whichever is the lesser. The quantum of the enrichment claim is calculated at the time the claim is instituted. The defendant is not liable for benefits that he due to his enrichment could have gained, but didn’t. It must as well be noted that if the defendant’s enrichment has been reduced or extinguished before the claim has been instituted, his liability will also be reduced or extinguished. The onus to prove non-enrichment lies with the defendant. In four instances the quantum will be calculated sooner, meaning before the date of institution of the action: a. At the moment the defendant become aware of enrichment; b. At an earlier stage if the defendant should have known that the benefit wasn’t justified; c. When the defendant fell into mora; and d. An earlier date if the defendant acted mala fide. It must be noted that these exceptions do not apply in the case of minors. In quantifying the claim all positive and negative side-effects should be taken into account. Interest earned on money in the hands of the defendant before litis contastio cannot be claimed by the plaintiff, but after mora the plaintiff can claim mora interest. If the defendant spent the money on something he would not have done if it wasn’t for the enrichment, he can raise the defense of non-enrichment. If all or part of what he spent the money on is still of value and in his hands, he must offer the goods or the value of the goods to the plaintiff. If the goods are more valuable than the impoverishment, the difference should be paid to the defendan