Condictio ob Turpem Vel Iniustam Causam

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Questions and Answers

What is a necessary criterion for a contract to be considered illegal?

It must involve a financial transaction.

It must be recorded in writing.

It must be verbally agreed upon by both parties.

Its subject matter must contravene public policy. (correct)

Under Roman law, what happens if both parties in a transaction are deemed to have engaged in shameful conduct?

The agreement is enforced, as both parties are implicated.

No claim can be made due to the par delictum rule. (correct)

One party may proceed with a claim if the conduct is less disgraceful.

Both parties can claim damages from each other.

In South African law, what must a plaintiff show to reclaim property under an illegal agreement?

That the defendant suffered equal or greater harm.

That the agreement was recorded formally.

That the agreement was made with the intent to defraud.

That the other party was enriched at their expense. (correct)

Which statement best reflects the par delictum rule in Roman-Dutch law?

It is strictly enforced with no exceptions. Signup and view all the answers

What is required for the 'turpis persona' determination in South African law?

It requires actual knowledge of the illegality. Signup and view all the answers

What is the distinction between condictio sine causa specialis and condictio sine causa generalis in Roman law?

Condictio sine causa generalis can be applied in place of any previous conditions. Signup and view all the answers

Under which circumstance can condictio sine causa be invoked in South African law?

When a party performs but the causa for performance has fallen away. Signup and view all the answers

What happens to goods when the existing causa falls away under Roman law?

They can be recovered as the stipulation is set aside. Signup and view all the answers

In Roman-Dutch law, what is the status of the negotium requirement in relation to condictio sine causa?

It does not entirely disappear but is flexible based on circumstances. Signup and view all the answers

What occurs when a countermanded or forged cheque results in ownership transfers sine causa?

Ownership is transferred without valid cause, allowing for recovery under condictio. Signup and view all the answers

What must a party prove to successfully reclaim performance under condictio indebiti?

Something was transferred in ownership to another party due to a mistake. Signup and view all the answers

Which scenario qualifies as an excusable mistake under SA law?

Payment made due to a misunderstanding of the facts around a contractual obligation. Signup and view all the answers

What is a mala fide receiver not liable for under condictio furtiva?

Loss of fruits that could have been gathered. Signup and view all the answers

What must be restored by the receiver in case of undue payment?

The thing transferred along with fixtures and fruits, minus production expenses. Signup and view all the answers

Under what condition can interest on the money and value of services rendered be recovered?

Recovery of interest is never allowed. Signup and view all the answers

Which of the following accurately describes the exception related to payments made under protest or duress?

Requires proof of the reasonableness of the mistake. Signup and view all the answers

What is the role of impensae necessariae and impensae utiles in the context of undue payment?

They are claimable by the receiver in certain situations. Signup and view all the answers

The general requirements for condictio indebiti under Roman-Dutch law closely resemble which of the following?

The requirements stated in Roman law. Signup and view all the answers

What is the right of repudiation in Roman Law?

Right to rescind a claim before counter-performance Signup and view all the answers

In the context of a resolutive condition, what happens if an uncertain future event occurs?

The contract is dissolved Signup and view all the answers

What type of conditions lead to a claim being possible in SA Law?

Fulfilled resolutive condition Signup and view all the answers

What happens to luxury improvements according to the regulations?

They can be removed without compensation Signup and view all the answers

What principle do contracts in Roman-Dutch Law follow?

Do ut des and Do ut facias principles Signup and view all the answers

Which of the following statements about compensation for improvements is correct?

Compensation is due only for necessary and useful improvements Signup and view all the answers

What triggers the cancellation of a contract in Roman-Dutch Law?

A breach by one party Signup and view all the answers

What is a suspensive condition in the context of this legal framework?

A condition that has not yet been fulfilled Signup and view all the answers

What is the primary obligation of the dominus toward a gestor under Roman Law?

To compensate the gestor for expenses. Signup and view all the answers

Under Roman-Dutch Law, when is a gestor not entitled to compensation?

If they acted against the dominus's prohibition. Signup and view all the answers

Which of the following is a requirement for true management by a gestor under South African Law?

The gestor may not act against the dominus's prohibitions. Signup and view all the answers

How does negotiorum gestio differ from enrichment regarding compensation?

Negotiorum gestio allows recovery of all reasonable expenses at the time of expenditure. Signup and view all the answers

What happens to a gestor's claim if the improvement managed is later destroyed under the concept of enrichment?

The claim is diminished based on the value at the time of loss. Signup and view all the answers

In South African Law, which of the following actions would invalidate the gestor's claim for expenses?

Acting outside the dominus's interests. Signup and view all the answers

Which action is permissible under Roman-Dutch Law regarding indirect enrichment?

A third party directly claiming against an enriched party for benefits received. Signup and view all the answers

What distinguishes negotiorum gestio from enrichment in terms of compensation criteria?

Enrichment recovers the lesser of impoverished or enriched amounts at the time of improvement. Signup and view all the answers

What occurs when an original owner detaches their movable property from another in Roman law?

The owner of the main article acquires ownership. Signup and view all the answers

In the case of a bona fide possessor who builds with their materials on another's land, which action can they initiate?

Claim for removal of fixtures and recovery of costs. Signup and view all the answers

What is the impact of ius retentionis for a bona fide possessor when they lose possession?

They lose all rights to the property. Signup and view all the answers

Under South African law, what is required for a bona fide possessor to maintain ownership?

The mistake must be reasonable. Signup and view all the answers

What action can a bona fide possessor NOT claim for regarding improvements made to land?

Voluptuary improvements. Signup and view all the answers

What is one key difference in the treatment of a bona fide possessor in Roman-Dutch law compared to Roman law?

They are treated the same as a bona fide possessor. Signup and view all the answers

In a situation where B's materials are used in A's building on A's land, what recourse does B have if he acted in mala fide?

B recovers the value of materials plus double. Signup and view all the answers

When can a bona fide possessor NOT use the ius tollendi?

After the true owner has claimed. Signup and view all the answers

What happens if a lease expires and there are crops on the land?

The crops must be left untouched regardless. Signup and view all the answers

What is the significance of the actio negotiorum gestorum utilis for a bona fide possessor?

It allows recovery for enrichment caused by their actions. Signup and view all the answers

Study Notes

Condictio ob Turpem Vel Iniustam Causam

This action is used to reclaim property transferred under an illegal agreement.
The agreement must be illegal in terms of common law or prohibited by statute.
The plaintiff must not be a turpis persona (a person of bad character).
If both parties are in turpitudo, the par delictum rule applies, and neither can claim.
If the plaintiff's conduct is less disgraceful than the defendant's, they can claim.

Roman Law

The plaintiff must prove they transferred property under an illegal agreement.
Roman Law also applied the par delictum rule.
The plaintiff could claim even if they were a turpis persona if their conduct was less disgraceful than the defendant's.

Roman-Dutch Law

Roman-Dutch law follows the same principles as Roman Law but strictly applied the par delictum rule.

South African Law

No causa exists for the transfer of property because the underlying agreement is void.
The plaintiff must have performed under the illegal agreement.
The defendant must be enriched at the plaintiff's expense.
The plaintiff must tender performance to return what they received.
The plaintiff must not be a turpis persona or have a good reason for not applying the par delictum rule strictly.
The turpis persona test is subjective, requiring actual knowledge of the illegality.
The plaintiff doesn't need to tender to return what they received if the defendant would have been precluded from claiming by the par delictum rule.

The Claim

The plaintiff can claim the property delivered, fixtures, and fruits, minus the defendant's necessary and useful expenses.
They can also remove luxury improvements.
Interest drawn on the money is not reclaimable.
The value of the factum (services rendered) is not claimable.

Condictio Indebiti

This is the most common and familiar action.
It’s used when a person performs believing they were legally obliged to do so but were not.

Roman Law

The transfer had to occur in ownership.
The error had to be in the belief that performance was owing (solvendi animo per errorem).

Roman-Dutch Law

The requirements are essentially the same as Roman law.
Payment made under a mistake of law (errorem iuris) could not be recovered.

South African Law

This action is used when performance is reclaimed under an excusable mistake.
It requires the transfer of a thing in ownership, the mistaken belief that payment was owing, and the mistake must be reasonable.
Payment under protest or duress is an exception.

Undue Payment

The payment must have been made when no debt was owed (sine causa).
The receiver must restore the thing, fixtures, and fruits, minus the production expenses.
The receiver is entitled to necessary and useful expenses.
Interest drawn on the money and the value of the factum are not reclaimable.

Mala Fide Receiver

They are liable with the condictio furtiva.
They are liable for damage to the plaintiff, interest on money received.
They are not allowed to claim any expenses, except sometimes for improvements.
If the performance is destroyed, they’re liable unless they can prove that the thing would have suffered the same fate.
This is an undeveloped enrichment action, not all detrimental side effects are taken into account.

Accession

This is the union of two or more things, where one becomes the principal thing and the other loses its separate identity.

Movable to Movable

The owner of the principal movable item acquires ownership of the attached movable.
The original owner loses ownership and cannot recover with rei vindication. They can only claim for unjustified enrichment.

Movable to Immovable

If a movable is attached to an immovable, the owner of the immovable becomes the owner.
If the movable is severed, the original owner can recover with rei vindication.
The original owner has a right to compensation, which depends on the circumstances.
For a building with B's materials on A's land:*
**Mala Fide: **B recovers twice the value of their materials and vindicates them after severance. They can institute an action to vindicate the materials or an action de figno iuncto.
**Bona Fide: **B can institute an action to vindicate the materials after severance or institute an action de figno iuncto. They have a right of retention until compensated.
For a building with A's materials on B's land:*
**Bona Fide: **A cannot institute an action. They have a right of retention and can remove useful improvements if B refuses to reimburse. They cannot claim for luxury improvements.
**Mala Fide: **A has ius retentionis or ius tollendi. They're treated the same as bona fide possessors but must account for fruits actually enjoyed and those they could have enjoyed.

Roman-Dutch Law

Similar to Roman Law.
Bona fide possessors have an action (perhaps actio negotiorum gestorum utilis).
They can institute this action even if they’re no longer in possession.
Fiduciarius cannot claim for everyday repairs.
The value of fruits is not considered.
The owner has a right of retention.
Usufructuaries have a duty to maintain the property, which does not affect their right to claim for necessary improvements.

South African Law

Bona fide possessors must reasonably believe they are the owner and must be acting under a reasonable mistake.
They lose ownership by accession but have recourse if the owner is unjustly enriched - actio negotiorum gestorum utilis.
They have ius tollendi - a personal right to remove attached materials without damaging the immovable.
This right must be exercised reasonably and according to equitable principles.
They must remove improvements before the true owner claims the land, unless the true owner refuses to compensate.
They can only claim for expended money or materials, not labor or interest on expenses.
They can also claim for lost income resulting from labor expense.

Condictio Causa Data Causa Non Secuta

This action is used to reclaim property transferred under a contract that is no longer valid because the underlying purpose has not been fulfilled.

Roman Law

It was used to reclaim money and things in specific legal cases.
The ius poenitentiae - the right to rescind a contract before counter-performance occurred - also applied.
Breaches of contract allowed both parties to rescind the agreement.
This action also applied when a resolutive condition was fulfilled, rendering the agreement invalid.
The plaintiff can claim the delivered items, fixtures, fruits, or the payment for those items.
They can also claim interest on the money.
The defendant is entitled to necessary and useful improvements.
They can remove luxury improvements.
The defendant cannot claim compensation for improvements.
The plaintiff cannot reclaim the value of factum (services rendered).
The exception of doli applies, meaning the defendant can refuse to restore the property before compensation.

Roman-Dutch Law

Contracts are consensual, meaning they are formed by consent.
Contracts are based on the principle of do ut des ("I give so that you give") and do ut facias ("I give so that you do").
The agreement can be cancelled if one party breaches the contract.
A resolutive condition allows the object to be returned to the original owner.
The right to reclaim performance before counter-performance is lost following the fulfillment of a resolutive condition.
A change of mind can trigger cancellation.

South African Law

This action applies when a transfer of property is made on the basis of an uncertain future event.
The defendant is liable to return the property if the underlying purpose has been fulfilled.
Once a resolutive condition is fulfilled, the obligation is extinguished.
If the basis of the contract proves false, the condictio causa data causa non secuta can be invoked.

Condictio Sine Causa Specialis

This action is used to reclaim property transferred in situations where there is no legal reason for the transfer (sine causa) and no other conditions are met.
It is a broader action used when the other actions are not applicable.

Roman Law

This action was used to set aside stipulations (oral contracts).
The causa was the reason for the contract.
If the causa fell away, the goods could be recovered.
If the thing was used up and the receiver became impoverished, the plaintiff could claim the money.

Roman-Dutch Law

The negotium requirement disappeared, but the action was still not general.
The value of factum wasn't claimable, only things that had been transferred.
This action was used when a bona fide possessor received a thing ex causa onerosa (for value).

South African Law

This action is available in four circumstances:
- The performance was due, but the reason for the performance has fallen away.
- The plaintiff's property was consumed or alienated by someone else.
- A bank made payment under a countermanded or forged cheque.
- The performance was not due.

Additional Notes (SA Law)

Ownership is transferred sine causa in countermanded or forged cheque situations.
If a bona fide possessor receives a thing ex causa onerosa, the profit from the thing constitutes enrichment.
The plaintiff can only sue one bona fide possessor for profit, and that bona fide possessor can sue their predecessors in title.

Negotiorum Gestio

This is the act of managing another person's affairs without their knowledge or authority.

Roman Law

The dominus is obligated to compensate the gestor for their expenses.
The dominus has a right to an accounting of owed amounts and damages for negligence.
The gestor must act in the interests of the dominus.

Roman-Dutch Law

Roman-Dutch law is similar to Roman Law.
The action is denied if the gestor acts against the dominus's prohibition.
The action is also denied if the gestor believes they're managing their own affairs.
Roman-Dutch law also allows for an action to compensate a party who has improved another person's land, even if the party acted bona fide or mala fide (in good faith or bad faith).
This action was extended to third parties who benefited from a contract where the party performing the contract did not benefit.
The third party can directly sue the unjustly enriched party.
However, a third party cannot benefit from the enrichment of the *dominus.

South African Law

The gestor must act reasonably without intending to gift.
The gestor must meet the following requirements:
- They must perform without instruction.
- They must act reasonably.
- They must intend to act in the best interest of the dominus.
- They must not have acted free of charge.
- They must not have gone against the dominus's prohibitions.
- They can be reimbursed for expenses even if the dominus doesn't benefit.

Differences Between Negotiorum Gestio and Enrichment

Feature	Negotiorum Gestio	Enrichment
Compensation	Gestor recovers all reasonable expenses at the time of expenditure.	Recovers the lesser of impoverished or enriched amounts at the time of the improvement. This only applies if the improvement still exists
Unaffected By	The fact that the improvement was destroyed, or diminished in value.	Diminished value or destroyed improvements affect the impoverished party claim.

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Description

This quiz explores the legal principles surrounding the reclaiming of property transferred under illegal agreements across Roman, Roman-Dutch, and South African law. Understand the implications of the turpis persona and par delictum rules in different legal systems. Test your knowledge of how these concepts apply in different contexts and jurisdictions.