LETTER OF INFORMATION STUDY GUIDE: ENRICHMENT & ESTOPPELlearning.ufs.ac.za/CPR414_OFF/Resources/1-Resources/1-Study Guide... · LETTER OF INFORMATION STUDY GUIDE: ENRICHMENT & ESTOPPEL

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CPR414eGuideE_learningJan2012.docx ©GHFick

FACULTY OF LAW

DEPARTMENT OF PRIVATE LAW

LETTER OF INFORMATION

STUDY GUIDE: ENRICHMENT & ESTOPPEL

COURSE: CAPITA SELECTA PRIVATE LAW

COURSE CODE: CPR 414 [E learning]

2012

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Table of contents page

PART 1 General course information 6

Lecturer 6

Teaching & learning plan 6

Prescribed text books 9

Requirements for access to exam 11

Composition of semester mark Class Tests 12

Assignment topic for 2012 12

Examinations 14

Results 15

Time and weight allocated to CPR 15

PART 2 General objectives 16

Enrichment 16

Estoppel 17

Outline of course content Lectures 1-13 (headings) 17

PART 3 Study manual: enrichment 19

Lecture 1 Introductory lecture (1): bird’s

eye view

20

Introductory lecture (2):

terminology

23

Study/reading material 23

Meaning of liability for unjustified

enrichment

24

Place in legal system 29

Need for an enrichment remedy 30

JC van der Walt’s ratio for

enrichment liability

33

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Delineation of concepts 35

Note pertaining to the studying of

the enrichment material

39

Activities and formative

assessment

42

Lecture 2 Development of a general

enrichment action

44

Study work 45

Remark 46

Activities 49

Lecture 3 Condictio indebiti 51

(1e classical enrichment

action)

Requirements (study/remark): 52

datio (study/remark/activity) 54-57

Indebite requirement

(study/remark/activity)

57-60

error requirement

(study/remark/activity)

61-70

Extent of defendant’s liability 70

Persons that can claim 74

Prescription 75

Lecture 4 (continuing) Condictio indebiti 78

Specific fields of application:

(1) Position of executor 78-83

(2) Cheques and banks 84-89

Lecture 5 Condictio causa data causa

non secuta

90

(2e classical enrichment Development of … 90

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action)

Circumstances necessary 93

�resolutive condition 98

�modus 104

Activities 106

Lecture 6 Condictio ob turpem 110

(3d classical enrichment

action)

Study 111

Remark: ob turpem in South

Africa

113

Activities 122

Lecture 7(1) Condictio sine causa specialis 125

(4e classical enrichment

action)

Study 125

Remark: circumstances 126

Activities 130

Lecture 7(2) Actio negotiorum gestorum utilis 131

(Ad hoc extention) Study 131

Remark: distinguished from

contraria

132

Activities 136

Lecture 8(1) Persons with limited capacity 139

(Ad hoc extention)

Lecture 8(2) Accessio and improvements 143


Remark: Remark graphic

distinction

145

Activities 148

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Lecture 9 Locatio conductio operis &

operarum

150


Remark: distinction 151

Activities 153

PART 4 Study manual: estoppel 156

Lectures 10-11 Introduction 157

Requirements 160

Representation &

mis representation

161

Damages 165

Causality 166

Lecture 12 Fault 170

Lecture 13 Application 172

Limitation 173

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PART 1

ENRICHMENT & ESTOPPEL GENERAL COURSE INFORMATION

LECTURER Prof Gerard Fick Office: CRS building (number 204)

Phone number: 051 401 2269 (office hours)

076 282 1733 (after hours)

E-mail: [email protected]

Visiting hours: Preferably with appointment

TEACHING AND LEARNING PLAN

One of the most interesting sections of the course Capita in Private Law (CPR 414), is the one on the law of obligations, called enrichment. To study this immensely voluminous field of law requires not only a good understanding inter alia of contracts, delicts, property law, law of persons, and the law of succession, but also proper arrangement and fine delineation. The study guide serves as a tool with which you have to write your own notes as you go along. As far as this is concerned you have to rely largely on your own endeavours and you should ignore (or at least carefully scrutinize) the “accumulated wisdom” of past LL B generations. Don’t underestimate enrichment! Don’t fall behind, keep apace by preparing ahead of time for the lectures, think about the difficult problem areas, dissect information with a surgical knife (to enable you to distinguish, define and link

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concepts). This inclination towards learning and skills development are closely intertwined with the primary aim envisaged for the course.

My overall aim for Enrichment Law and Estoppel is not to give you an overload of information and concepts, but to expand your self-acquired knowledge, deepen your insight and allow you to exercise the application of this specific discipline (inevitably) for you to become lifelong learners and independent thinkers in the practice of law. In an effort to reach this goal, you have to understand two issues clearly. The one is that you have to take responsibility for your own studies. The other is that no one can make you “understand” – you have to learn yourself ! As the lecturer, though, I am able to make the (self) learning process easier. This I can do by creating the learning environment in innovative ways and by motivating you. My primary function as lecturer, and this I truly believe, is to facilitate your learning. As a consequence, I am going to allow you (even indirectly force you) to learn by yourself on a regular week by week process. How am I going to create a stimulating learning environment online? I shall endeavour to do it by way of two types of learning, namely “constructive aligned learning” and “electronic learning”. With constructive aligned learning I want to emphasise that (i) with deliberate guidance you (yourself ) will activily give new structure to “old” knowledge and that will empower you to think deeper and wider in dealing with new problems in a changing world and to solve it more efficiently and innovatively. This is known as constructive learning. (ii) In addition, I want to open up the new wisdom by way of learning and assessment activities that is in line with what is aimed for in each and every lecture session. I intend to align the learning activities and tests/tasks to support and reinforce the designated aims envisaged.

The second type of learning process is known as online learning. The purpose of electronic learning is to use the functions of electronic learning to its fullest. BlackBoard (a learning management system for distant learning (e-learning)) and Mobile Learning (the so-called m-learning via cellular phones, iPods and MP3s) serve to reinforce (self)learning. If you are able to “Mixit” or “Facebook” with your mobile,

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then you have WAP (“Wireless Application Protocol” and Hotlava) to partake in electronic learning. For that matter, you will all be able to BlackBoard and Mobile Learn.

How will the BlackBoard learning work practically in Enrichment and Estoppel?

The subject-matter, sequence of learning, reference to reading material (other additional reading) and notes for each and every lecture unit will be stored on BlackBoard. You have unlimited access by means of a PC and/or mobile with internet connection to this very study guide. You will be able to make print-outs as well. Formative tests will also be loaded onto BlackBoard in good time. You will be compelled to fully and correctly (100%) complete the test devised for a specific lecture week before the deadline arises. Non-compliance shall lead to exam refusal. The purpose of these formative tests is to help you to be prepared (with basic knowledge) on a weekly basis without leaving all the studying for the examination period . This will really take effort and commitment from you to stay with me. So what is the incentive to do it? Threefold in the Enrichment and Estoppel part. * Each and every of these formative tests (of which you will have to

fully and correctly complete at least 10 to gain admission to the CPR exam) will count 10% each accumulating to 20% of your assignment mark in Enrichment and Estoppel. Furthermore ...

* Your written assignment will be rounded off to 80 to accommodate the 20 marks of the formative tests. Thus, the total “assignment mark” of a 100% will be composed of your written assignment mark (80%) and the formative tests mark of 20%. And ...

* In doing so it will inevitable lead to a higher proportional mark in Enrichment and Estoppel and, for that matter, in your CPR semester mark. In addition you won’t feel lost, because you are “clued up” and that will better your chances overall to succeed with CPR 414.

Towards the end of every week we shall do only problem-based learning and we shall use different activities to seek solutions. These factual situations will be posted on BlackBoard (in good time) for discussion amongst the e-learning students. The idea with this approach is to make the self acquired knowledge functional to enable you to solve new problems as well. During these discussions the aim is to elicit participation from all CPR distance students (and as lecturer I will be able to track participation) and questions, solutions, comments,

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notes (and more) are welcomed on the discussion forum. In this way the interaction amongst students and between students and lecturer will be promoted. The “chat” of ? February 2012 will serve as a barometer to measure the effectiveness of this endeavour and to straighten out hiccups. Very little prescribed material will be made available on BlackBoard. You will have to buy the prescribed textbooks. Fortunately two new and excellent textbooks have been published recently. Professors Jean Sonnekus (November 2007) and Daniel Visser (January 2008) published the first post 1987 textbooks (Visser’s in English only) on this subject. Especially Sonnekus’ book (being in English and Afrikaans) will be used as basic source of Enrichment in the CPR 414 course. These textbooks will certainly help you to acquire the necessary basic knowledge and learn new concepts yourselves. This will free me to achieve my primary aim (above) more easily.

Allow me only a few words pertaining to Estoppel which will be dealt with in a slip-shod manner, This part of the law deals with a handy defence without which one will be poorer legally. At first glance it reminds one of a delict, but at closer scrutiny, it is a defence standing on its own legs giving relief in the tightest of circumstances. Estoppel not only assists the bona fide purchaser in defeating the rei vindicatio of the owner, but can without doubt be utilized in many more circumstances. The bigger picture will keep our attention. I shall deal superficially with the reading material prescribed for Estoppel. You will have to study it by yourself. Your understanding will be tested with a factual situation on Estoppel in need of a solution. Your endeavour to solve the problem must be subjected to the scrutiny of 2 peer co-student reveiwers and your own justification of the allotted mark by them. Your effort will be considered if you are a boarderline case. So don’t skimp on your effort.

PRESCRIBED BOOKS AND OTHER STUDY MATERIAL

♥♥♥♥Enrichment (prescribed textbook which you must buy +

sections in lawsa which will be provided on BlackBoard along with this Study Guide)

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��Sonnekus JC 2008 Unjustified enrichment in the South African Law Durban: LexisNexis (hereinafter referred to as Sonnekus “Unjustified Enrichment” )

��Lotz JG & Brand FDJ 2005 “Enrichment” in Joubert WA (ed) The Law of South Africa Updated version Vol IX Durban: Butterworth (hereinafter referred to as Lotz/Brand “LAWSA Enrichment” (this will be posted on

BlackBoard)

OR (in the alternative to Sonnekus, the excellent and well-structured book, but only in English available and

way to expensive )

��Visser D 2008 Unjustified Enrichment Cape Town: Juta (hereinafter referred to as Daniel Visser “Enrichment” )

♥♥♥♥Enrichment (books which are nice to have, but need *not be

purchased )

*Eiselen S and Pienaar G 2008 Unjustified enrichment - a casebook 3rd ed Durban: LexisNexis (hereinafter referred to as Casebook: Enrichment(3) )

*De Vos W 1987 Verrykingsaanspreeklikheid in dieSuid-Afrikaanse reg 3rd ed Cape Town: Juta

(hereinafter referred to as De Vos 1987 ). Although outdated (1987), this book

remains an excellent source to acquire

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the background to enrichment and to enlighten the concepts.

♣♣♣♣Estoppel (prescribed textbook which has to be purchased)

��Sonnekus JC (original text PJ Rabie) 2000 The law of Estoppel in South Africa 2nd ed Durban: Butterworths (hereinafter referred to as Sonnekus "Estoppel"(2) )

♣♣♣♣Estoppel (prescribed case book which is recommended, but

need *not be purchased)

*Potgieter JM and Visser PJ 1995 Casebook/Vonnisbundel: Estoppel Durban: Butterworths (hereinafter referred to as Casebook: Estoppel )

♠♠♠♠Addisional study material - articles from legal periodicals

and reported cases are prescribed in the study guide and are to a large extent found in the Casebook itself or must be looked for yourself. New articles may be loaded onto BlackBoard..

REQUIREMENTS FOR ACCESS TO THE EXAM

A student will qualify for access to the exam when the prescribed work (formative tests) is done promptly and properly and, the assignments are submitted when scheduled. You are urged to start promptly with the assignments and finish it on the due date. Half of the total semester mark (predicate) is compiled in this manner [Regulation A 14]. The other half will consist of marks accumulated in capita:contract of lease. The semester mark (20%) and the May/June exam (80%) count in the proportion 1:4 towards the determination of the final mark. The latter must be 50% to pass this course.

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PLEASE TAKE URGEND NOTICE! The passing of the cours e is further subject to a 40% SUB MINIMUM REQUIREMENT in each of the two sub-sections (enrichment/estoppel and lease). This will apply to the semester and exam mark giving access to the exam (R eg A 17(b)(ii)).

COMPOSITION OF THE SEMESTER MARK The predicate in Capita Private Law (CPR 414) is compiled as follows:

**Enrichment and Estoppel 10| Capita selecta: contracts 10| = 20| (be mindful of the sub minimum requirement) |

| + | ÷ 2 = 100

*Exam: Enrichment & Estoppel 40| | Capita selecta: contracts 40| = 80 | (be mindful of the sub minimum requirement)

**The mark compiled in Enrichment and Estoppel is a numerical figure expressing the quality of the student’s performance in the formative tests and the written assignment.

ASSIGNMENT TOPIC FOR 2012: Lately, there has been a tendency in the South African courts to ignore the

appellation of the specific classical enrichment actions (in cases of

enrichment by transfer) in favour of the 4 generic principles of enrichment

liability, namely enrichment of the defendant; impoverishment of the plaintiff;

at the expense of the impoverishee; and sine causa. The development of

enrichment law in future will greatly depend on the interpretation of the sine

causa requirement. Visser1, Du Plessis2 and Scott3 mark out the boundaries

1 Visser D 2008 Unjustified Enrichment Cape Town: Juta pp 181-193.

2 Du Plessis J “Towards a rational structure of liability for unjustified enrichment: Thoughts from two

mixed jurisdictions” 2005 (122.1) South African Law Journal 142-181.

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of this concept, and indeed, the structural understanding of enrichment

liability in South Africa in the years to come.

I want you to use the article by Graham Glover4 to explain each and every of

the above writers’ understanding of the concept “sine causa” and come to a

favoured and reasoned opinion of your own.

[100]

The following guidelines are to be followed meticiously: 1. Due date: see semester calendar. Late or no submission will result

in an “incomplete” for CPR 414. 2. Length: 3 000 words (10 pages) – content only. 3. This is independent research and you will have to comply with the

basics of good research (ie footnotes/bibliography/ect) 4. Do your own work. Any form of plagiarism will be met with an

“incomplete” in CPR 414. 5. The matrix for assessment will be the following:

Student: (stude nt no )

e-Learning ASSIGNMENT No 1 ASSESSMENT

Selection of material

10

Integration of material

30

Originality and quality of research

30

Language and drafting

10

Bibliographical style

10

Compilation and presentation

10

3 Scott HJ “Restitution of extra-contractual transfers: Limits of the absence of legal ground analysis”

2006 (14) Restitution Law Review 93- 4 Glover G “Reflections on the sine causa requirement and the condictiones in South African Law”

2009.3 Stellenbosch Law Review 468-493. This article will be posted on BlackBoard.

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TOTAL RECALCULATED TO

100

80

EXAMINATION:

You should verify the exam date and time on the final timetable. You are compelled to write the exam only on the date specified in the mid-year examination timetable. This exam takes place between the 14th of May 2012 and the 9th of June 2012.

You no longer have the luxury of having 2 dates to choose from when to to write the CPR exam. The new system of back to back examinations in succession makes room for two types of examinations. The first one is compulsory. The second additional examination (from 18th June 2012 to 30th June 2012) is for supplementary cases (having achieved a final mark in the course of between 45 and 49%) and special cases (allowing for applications with proper reasons why the first exam could not be written).

In order to pass CPR 414, you should obtain a total average of 50%, and satisfy sub-minimum requirements of 40% for the sem ester mark and in the exam . To pass a course with distinction, you should obtain a final average of at least 75% [Regulation A 17]. NO promotion is possible in 4th year courses.

PRESENTATION OF MODULES FROM OTHER UNIVERSITIES

1 All requests of students to present modules from other universities, should be motivated in writing.

2 (a) Should the relevant head of department not be convinced that an acceptable reason exists why the equivalent UFS module cannot be presented, a request of a student for recognition of equivalent module(s) thathe/she wishes to present from another university, shall only be granted by the Dean in terms of Reg A31.

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(b) Should a student already have failed the equivalent UFS module twice or more than twice, his/her request for recognition of a module that he/she wishes to present from another university, shall only be granted in exceptional circumstances, with due consideration of Reg A31.

3 No final year modules required for the acquisition of the LL B degree at the UFS may be presented from other universities.

RESULTS

No test or exam results will be divulged telefonically. The results will be posted on the notice board in the CRS building and the test-scrips will be handed out in class.

A student may discuss an examination paper with a lecturer and the head of department within 5 exam days after results are posted [Reg A 27].

TIME & WEIGHT ALLOCATED TO CPR 414

Capita Selecta: Private Law (CPR 414) exam paper will have a three hour duration and will count 70 marks. Half of the time and marks will be allocated to Enrichment & Estoppel in the weighted proportion of 4:1. The other half will be allocated to the Law of Lease.

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PART 2

CAPITA: PRIVATE LAW

GENERAL OBJECTIVES:

RELATING TO ENRICHMENT

• The student must be able to identify the circumstances or

requirements for the institution of the different classical condictiones and

ad hoc enrichment liability as they appear in factual situations and to

determine the extent of liability theoretically and in pleadings.

• The student must be able to identify, distinguish, link and apply the legal

rules pertaining to enrichment liability in problem type situations efficiently

and effectively and come to an original solution.

• The student must further be able to see the “wood” of enrichment liability

in the context of all the different actions and think independently about

extensions and limitations to explain whether this type of obligation will

find application.

• The student must critically analyse the problematic areas and aspects of

enrichment liability, as well as the solutions proposed to systematically

explain and take an own stance on these problems.

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RELATING TO ESTOPPEL

• The student must be able to analyse, distinguish, relate and explain the

different categories of Estoppel , the applicable positive law and various

viewpoints on Estoppel.

• The student must be able to identify, explain and apply the essential

requirements (facta probanda) of “estoppel by representation”.

• The student must be able to identify situations from given facts where

the defence of Estoppel will (or will not) find app lication, analyse the

facts and apply the rules of Estoppel to solve new problems

innovatively .

OUTLINE OF THE PART OF THE COURSE DEALING WITH ENRICHMENT AND ESTOPPEL

The course will cover the following themes:

LECTURE 1: Introduction (bird’s eye view of enrichment); 20 the value of estoppel; and other administrative chores.

Conceptualization; origin of legal jargon; 23 definition of Enrichment; place and nature of Enrichment in the legal system; need for liability based on Enrichment

LECTURE 2: Development of a general enrichment action 44

LECTURES 3+4:Condictio indebiti 51/78

LECTURE 5: Condictio causa data causa non secuta 90

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LECTURE 6: Condictio ob turpem vel iniustam causam 110

LECTURE 7: Condictio sine causa specialis 125

Actio negotiorum gestorum utilis 131

LECTURE 8+9: Persons with limited capacity to act 139

Accessio, preservation and protection of the property of another (to be continued) 144

LECTURE 9: Modern extention: Work and services rendered 150

LECTURE 10-11: Introduction (exceptio rei iudicatae; “estoppel by representation” – generally and reception from the English Law; definition and the pleading of estoppel) 157

Requirements for Estoppel: unlawful misrepresentation, detriment and causality

LECTURE 12-13:Requirements for Estoppel (continued): fault 170

Application of Estoppel

Limitations on Estoppel

Documents

LETTER OF INFORMATION STUDY GUIDE: ENRICHMENT & ESTOPPELlearning.ufs.ac.za/CPR414_OFF/Resources/1-Resources/1-Study Guide... · LETTER OF INFORMATION STUDY GUIDE: ENRICHMENT & ESTOPPEL