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A contract can be considered illegal if its object is contrary to bonos mores.
True
In Roman law, if both parties are in turpitudo, the plaintiff can still make a claim.
False
In South African law, a plaintiff must tender a return of what was received if they are not a turpis persona.
True
The par delictum rule is strictly applied in Roman-Dutch law.
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Interest that has been accrued can be reclaimed as part of a claim under an illegal agreement.
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Under Roman Law, an error made while believing that a performance was due is known as 'solvendi animo per errorem'.
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In Roman-Dutch Law, payment made due to a mistake of law can be recovered.
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A mala fide receiver cannot be held liable for any expenses incurred during the possession of the received performance.
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In South African Law, at least three requirements similar to Roman and Roman-Dutch Law must be met to reclaim performance under excusable mistake.
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In the case of undue payment, the receiver is obliged to restore only the thing but not the fruits or fixtures.
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A party must prove that a transferred thing was not owned by them to reclaim performance due to a mistake.
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Compensation for interest drawn on money or the value of factum can be recovered by the receiver.
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The obligation to restore the value of the destroyed thing applies unless the party was in mora.
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A breach of contract allows the party who has not defaulted to rescind the contract with a resolutive condition.
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In Roman-Dutch law, contracts are considered real and require delivery for formation.
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Under SA law, a fulfilled resolutive condition does not end the obligation.
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Luxury improvements cannot be removed by the defendant in a legal dispute.
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The right of repudiation allows a party to cancel their claim after counter-performance.
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No compensation is due for necessary and useful improvements made by the defendant.
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In SA law, a claim can be made if the object is delivered based on an unfulfilled resolutive condition.
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In the context of Roman law, the defendant has a right to refuse restoration until compensated.
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The general condictio can be used as an alternative when other conditions are applicable.
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In Roman law, a stipulation can be set aside if entered without a valid iust causa.
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The Roman-Dutch law allows the claim for the value of a factum that has been transferred.
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In South African law, ownership can be transferred through countermanded cheques where no other conditions apply.
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A bona fide possessor can sue for profit from the enrichment of a thing regardless of prior ownership.
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If the owner of a main article detaches it, the original owner retains ownership.
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In the case of movable to immovable, the owner of the immovable can recover ownership through rei vindication if severed.
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A mala fide possessor is entitled to recover twice the value of his materials.
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Bona fide possessors have the right to reclaim costs for everyday repairs.
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The buyer of movable property automatically receives ownership of that property.
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Ius retentionis allows a bona fide possessor to keep possession of an immovable until compensated.
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An owner can institute an action for redhibitoria after the sale of their property.
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Lessees have the right to remove all fixtures at the end of a lease without any conditions.
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A bona fide possessor is legally bound to inform the true owner of material removal before a claim.
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In South African Law, a bona fide possessor loses ownership by accession.
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In South African law, a gestor acting for another person's benefit must have the intent to gift.
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Roman-Dutch law allows a gestor to receive compensation even if their actions contradict the dominus's wishes.
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Compensation for a gestor in the neogiorum gestio is limited to reasonable expenses incurred at the time of expenditure.
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Under SA law, a gestor must perform their duties without instruction from the dominus.
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In Roman law, the dominus is not obligated to compensate the gestor for their expenses.
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Enrichment claims are unaffected by the destruction of improvements made.
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In negotiorum gestio, the gestor must act in the best interest of themselves rather than the dominus.
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Third parties are allowed to benefit from enriching the dominus under Roman-Dutch law.
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Study Notes
Condictio ob Turpem vel Iniustam Causam
- A contract is deemed illegal when its subject matter, object, or conclusion contradicts good morals (contra bonos mores) or is expressly or implicitly prohibited by statute.
- The Roman law approach allows for a claim if the plaintiff transferred property under an illegal agreement, provided they aren't a "turpis persona" (shameful individual).
- Claims are not allowed if both parties are equally at fault, but later relaxed.
- Roman-Dutch law strictly applied the "par delictum" rule, meaning a claim is denied if both parties shared in the illegal act.
- South African law requires a plaintiff to prove they performed an illegal act, the defendant enriched at their expense, tendered performance to return what they received and are not a "turpis persona."
- The plaintiff must have actual knowledge of the illegality and the par delictum rule is applied subjectively.
- SA Law doesn't require a plaintiff to tender what they received if the defendant couldn't claim due to the par delictum rule.
Condictio Indebiti
- The most common action is to reclaim performance under a mistaken belief of a debt.
- Roman law mandates that the performance be transferred in ownership, with an error in payment (solvendi animo).
- Roman-Dutch law applied similar requirements but excluded claims for mistakes of law (errorem iuris).
- South African law allows for reclaiming performance based on excusable mistakes, with similar requirements as Roman law.
Accession
- When movables are attached to other movables, the owner of the main article acquires ownership.
- The original owner loses ownership and can only claim enrichment.
- In cases of movables attached to immovables the owner of the immovable gains ownership.
- If severed, the owner can claim the items back through rei vindicatio.
- A right of compensation exists based on the nature of the attachment depending on the bad or good faith of the owner and the party that attached their materials.
Condictio Causa Data Causa Non Secuta
- This action is used to reclaim items transferred and performance based on an uncertain future event.
- Roman law recognized the right of repudiation before counter-performance.
- A claim can be made if the object is delivered to the defendant based on a resolutory condition that has been fulfilled.
- Resolutions occur when the condition of the contract is met, suspending the obligation.
- Conditions that are not met are considered suspensory.
- A claim is not necessary if the attached condition is not relevant to the contract.
- The claim can be made when the underlying assumption of the contract is false.
Condictio Sine Causa Specialis
- This doctrine applies when no other conditions apply and there's a distinction between general and special cases in Roman law.
- It functions as an alternative to other methods of obtaining redress.
- Roman law required a “negotium” (legal transaction) for the claim.
- Roman-Dutch law still required a "negotium" and further developed the claim by allowing the value to be claimed.
- In South African law, the condictio sine causa specialis is used when the performance was due but the grounds for the performance have disappeared, the plaintiff’s property is used by someone else, a payment was made under a countermanded cheque, a cheque is forged, a payment was due but grounds for payment are invalid.
Occupiers, Lessees and Fixtures
- Roman-Dutch law applied different rules and actions based on the type of contract: bona fide occupiers, fiduciiary (bona fide), usufructuary, buyers of moveable and immovable property, lessees.
- Bona fide Occupiers could claim compensation for necessary or useful improvements, except impensae voluptuariae (luxury improvements).
- Occupiers had the right of retention, allowing them to refuse to leave the land unless compensated.
- SA law applied similar principles regarding compensation for improvements, the right to remove fixtures, and the right of retention.
- There are specific rules for lessees regarding fixtures and crops, which can be removed.
- Specificatio (creation of a new thing) could be used by lessees to claim the value of lost things, especially important in cases of loss of crop due to lease expiry.
Negotiorum Gestio (Management of Affairs)
- Roman law required the gestor to act in the interest of the dominus and compensated the gestor for expenses.
- The dominus had a right to an accounting and to claim damages for negligence.
- Roman Dutch law differed slightly from Roman Law, prohibiting compensation if the action went against the dominus's wishes.
- Roman-Dutch law did not allow action when the gestor believed they were acting in their own interests but were actually managing another’s affairs (bona fide).
- South African law requires reasonableness, intent to act in the dominus's interests and no intention to provide a gift, as well as that the gestor act without instructions, at their own expense and not against the dominus's prohibitions.
Differences Between Negotiorum Gestio and Enrichment
- Negotiorum Gestio actions are based on recovery of reasonable expenses incurred whereas the enrichment principle is based on recovery of the lesser amount of impoverished or enriched amounts.
- Negotiorum Gestio claims are not affected by the fact that the improvement was destroyed or diminished in value.
- Enrichment claims are affected by the destruction or diminution of the improvement, which influences the amount of compensation sought by the impoverished party.
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Description
Explore the nuances of illegal contracts in this quiz on Condictio ob Turpem vel Iniustam Causam. Understand how various legal systems, including Roman law and South African law, treat claims associated with illegal agreements. Test your knowledge on important concepts like the 'par delictum' rule and the implications of parties involved in illegal acts.
