Agreement void owing to illegality of agreement Contract illegal: In terms of common law subject matter of contract, its object or conclusion is contra bonos mores Prohibited expressly or by necessary implication by statute. Objective criterion Roman Law Roman-Dutch Law SA Law A pays B money in terms of No essential difference No causa because invalid transaction. A could Par delictum rule strictly underlying agreement is claim applied void. Requirements: Requirements: Transfer of property i.t.o. Perform i.t.o. illegal illegal agreement agreement (prohibited by law) Other party enriched at Plaintiff himself not a expense of plaintiff (who turpis persona (shameful) was impoverished) Tender made to return If both parties in turpitudo – performance received by no claim, since the par plaintiff delictum rule – later relaxed. Plaintiff not turpis Could claim if conduct less persona or good reason disgraceful than defendant’s. not to apply par Claim: delictum rule strictly. Property delivered + Turpis persona tested fixtures + fruits minus subjectively. Actual defendant’s impensae knowledge of illegality necessariae + impensae required. utiles Right to remove impensae Plaintiff need not tender to voluptuariae return what he received if Interest drawn not defendant would have been reclaimed precluded from claiming by Value of factum not the par delictum rule. claimed Undeveloped CONDICTIO CAUSA DATA CAUSA NON SECUTU Do ut des: I deliver so that you can deliver Do ut facias: I deliver so that you can do Innominate real agreement (only valid once performance takes place) Roman Law Roman-Dutch Law SA Law Used to reclaim money and All contracts consensual – Uncertainty things in ff cases: no real contracts appeared. Where transfer of thing ius poenitentiae Instituted in cases of made and performance
Agreement void owing to illegality of agreement Contract illegal: In terms of common law subject matter of contract, its object or conclusion is contra bonos mores Prohibited expressly or by necessary implication by statute. Objective criterion Roman Law Roman-Dutch Law SA Law A pays B money in terms of invalid transaction. A could claim Requirements: Transfer of property i.t.o. illegal agreement (prohibited by law) Plaintiff himself not a turpis persona (shameful) If both parties in turpitudo – no claim, since the par delictum rule – later relaxed. Could claim if conduct less disgraceful than defendant’s. Claim: Property delivered + fixtures + fruits minus defendant’s impensae necessariae + impensae utiles Right to remove impensae voluptuariae Interest drawn not reclaimed Value of factum not claimed Undeveloped No essential difference Par delictum rule strictly applied No causa because underlying agreement is void. Requirements: Perform i.t.o. illegal agreement Other party enriched at expense of plaintiff (who was impoverished) Tender made to return performance received by plaintiff Plaintiff not turpis persona or good reason not to apply par delictum rule strictly. Turpis persona tested subjectively. Actual knowledge of illegality required. Plaintiff need not tender to return what he received if defendant would have been precluded from claiming by the par delictum rule. CONDICTIO CAUSA DATA CAUSA NON SECUTU Do ut des: I deliver so that you can deliver Do ut facias: I deliver so that you can do Innominate real agreement (only valid once performance takes place) Roman Law Roman-Dutch Law SA Law Used to reclaim money and things in ff cases: ius poenitentiae All contracts consensual – no real contracts appeared. Instituted in cases of Uncertainty Where transfer of thing made and performance
PVL3704-unjustified_enrichment_liability__notes.docx