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PVL3704 EXAM PACK 2023
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ELABORATE QUESTIONS & ANSWERS
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PVL3704EXAM
PACK
2023
ELABORATE QUESTIONS &
ANSWERS.
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QUESTION 3
Briefly discuss the field of application and the requirements of the condictio causa data
causa non secuta. (10)
Roman law:
In Roman law the condictio causa data causa non secuta was used to reclaim money or things
transferred in ownership in the following cases:
ius poenitentiae .
When a party had performed in terms of the forms do ut des (I deliver so that you can deliver) or
do ut facias (I deliver so that you can do) of an innominate real agreement (an agreement that
would only be valid and enforceable once performance had taken place) and thereafter, before
counterperformance had taken place, reclaimed the thing delivered in terms of his ius
poenitentiae. The law gave the party performing the opportunity to reconsider before the other
party delivered the counterperformance. This right to rescind in such a case was called the ius
poenitentiae. Thus it appears that the ius poenitentiae of the party who had, for example,
delivered the thing in terms of the do ut des form of the innominate real agreement, was granted
by virtue of the fact that such party had not delivered on the grounds of a valid causa, since the
contract was created only by the delivery. If the person who performed first in terms of the
innominate real agreement decided not to continue with the agreement before
counterperformance had taken place, he could have relied on his ius poenitentiae, rescinded
the contract and reclaimed his performance with the condictio causa data causa non secuta.
The ius poenitentiae fell away if counterperformance became impossible owing to an act of God
(vis maior) or chance.
Roman-Dutch law:
In Roman-Dutch law all contracts were consensual and real contracts no longer appeared. The
effect was that the condictio in question was instituted in the case of consensual contracts do ut
des and do ut facias in the case of (1) cancellation owing to breach of contract by the other
party to the contract, and (2) the fulfilment of a resolutive condition. Because all contracts were
consensual in
Roman-Dutch law, the ius poenitentiae of Roman law fell away. Therefore, a party could no
longer, after he had performed but before the other party had done so, have changed his mind
and reclaimed his performance.
Application in South African law:
South African law of contract has developed to the point that contractual remedies now provide
for circumstances where the condictio causa data causa non secuta used to be implemented
This action is used to reclaim performance. There is uncertainty about the field of application of
this action in modern South African law. The common feature in case law where this action has
been used seems to be where transfer of a thing was made or performance rendered on the
basis of some future event taking place or not taking place (a so-called causa futura). When the
future event does not happen (or does happen in the case of resolutive conditions), the causa
for the transfer falls away and the performance rendered is reclaimed with this action. On this
basis the plaintiff may possibly institute the condictio causa data when he has delivered a thing
to the defendant by virtue of:
1. a resolutive condition which is fulfilled
2. a suspensive condition which is not fulfilled
3. a modus which is disregarded
4. an assumption which is not fulfilled
A. Conditions can take one of two forms in contracts and wills:
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1. Resolutive conditions If the future uncertain event takes place or the condition is fulfilled, it
causes the contract to come to an end or the testamentary disposition to become void.
2. Suspensive conditions have the effect of suspending some or all of the rights and obligations
under the testament or will until the occurrence of an uncertain future event.
B. Unfulfilled assumptions
De Vos refers only to future assumptions in the controversy of the exact nature of the
assumptions. In Fourie an obiter statement distinguished between assumptions and conditions.
An assumption can only relate to the facts of the present or the past, but not the future. If the
assumption is true the contract based on it is immediately valid and binding; if it is false the
contract is immediately void in which case the appropriate enrichment action is the condictio
indebiti because the contract is void from the beginning. An assumption which relates to the
future is no assumption but a resolutive condition.
C. Modus
Where a testamentary disposition is made subject to a modus there is an obligation on the
legatee or heir to comply with the provisions of the modus. Where the disposition is revoked
owing to noncompliance, the disposition can be reclaimed with this remedy.
Breach of contract
De Vos: is of the opinion that the condictio causa data no longer plays a part in our law in the
case of recisission on the ground of breach of contract, but that the innocent party would make
use of contractual remedies. AD confimed De Vos view in Baker v Probert.
(4) Name the three applications of the condictio causa data causa non secuta in South
African law.
There is a great deal of uncertainty about the field of application of this action in modern South
African law. Upon analysis the common feature of all the examples where this action has been
used seems to be cases where transfer of a thing was made or performance rendered on the
basis of some future event taking place or not taking place (a so-called causa futura). When the
future event does not happen (or does happen in the case of resolutive conditions), the causa
for the transfer falls away and the performance rendered is reclaimed with this action. On this
basis the plaintiff may possibly institute this condictio when he has delivered a thing to the
defendant by virtue of:
. A resolutive condition which is fulfilled
. A suspensive condition which is not fulfilled
. A modus which is disregarded
. An assumption which is not fulfilled
The importance of the decision in Baker v Probert 1985 (3) SA 429 (A) for the application
of the condictio causa data causa non secuta in South African law.
Contractual remedies after breach of contract:
De Vos (156 et seq) holds the view that this condictio no longer plays a part in our law in the
case of rescission on the grounds of breach of contract, but that the innocent party in such a
case would make use of contractual remedies. De Vos bases his view on the fact that, for the
purposes of rescission on the grounds of breach of contract, a distinction was drawn in Roman-
Dutch law between contracts which were innominate real contracts in Roman law (in these
contracts the right of rescission was wider and the condictio was used) and contracts which
were consensual even in Roman law (in these contracts the right of rescission was more limited
and a contractual action was used). This distinction, says De Vos, no longer holds in our law,
and consequently this condictio no longer plays a part in regard to cancellation on the ground of
breach of contract. The Appellate Division confirmed this approach in Baker v Probert
1985 (3) SA 429 (A) 438–439
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QUESTION 4
Discuss the rule that estoppel must be allowed by law, referring to relevant case law.
(10)
1. General principle discussed [2]
2. Hire purchase examples and discussion [2]
3. Trust Bank v Eksteen [2]
4. Own relevant examples [2 marks each]
• Case law examples: Brady, Long, Hoisain, Ebrahim, Fuls, Hauptfleisch, Strydom, Rand
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Where the upholding of an impression by means of estoppel results in a situation prohibited in
the public interest, by common law or statutory law, estoppel cannot be available as a remedy.
Estoppel is also not available to allow a statutory body to commit an act which is ultra vires the
powers of such body.
Holsain: if a trade licence is wrongly issued to a merchant in spite of an express resolution to
the contrary by the authorized body – the maintenance of the false impression will enable the
trader to continue contrary to statute = estoppel CANT be applied
Exception: estoppel can be applied where the impression would create a situation, which is
merely contrary to policy without being in conflict with any statute.
Ebrahim: local authority mistakenly and in conflict with policy, granted a trade license in respect
of certain areas – when it attempted to cancel the licenses – they relied on estoppel
Ultra vires acts:
estoppel doesn’t allow a statutory body to commit an act, which is ultra vires = they are given
their powers by statute and can’t do anything beyond those powers
In the Eksteen case the hire-purchase seller bound himself to the discounter by means of a
contract of suretyship, in which the seller stood good for the proper fulfilling of the hire-purchase
buyer's duties against the discounter in terms of the discounted hire-purchase agreement. Thus,
apart from the obligation between the discounter and the buyer, there is also in this case the
form of a contract of surety between the seller and the discounter. The seller gave the
discounter the impression that contracts were in order. The discounter claimed the outstanding
balance in terms of the hire- purchase agreements from the hire-purchase seller in terms of the
contract of suretyship between them. The hire-purchase seller raised the nullity of the hire-
purchase contracts as defence (because payment of the deposit required by statute had not
been made), which also resulted in the nullity of the suretyship. The discounter pleaded
estoppel against this.
In the judgment of the court a quo two questions were distinguished:
(1) The argument that the required deposit had not been paid resulted in the original hire-
purchase contracts' being null and void. The first question was whether estoppel could be raised
to enforce the void hire-purchase agreements. It was argued that it could not because a plea of
estoppel would result in a wrongful outcome. The ``claim'' (personal right) in terms of the hire-
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