CONCLUSION
Although it is not infrequently said that the law of unjustified enrichment in civilian systems is based on ‘equity’, or that claims for restitution that nowadays are regarded as belonging to this area of law are ‘equitable’, it is hardly clear what this is supposed to mean. Taking South African law as point of departure, it is argued here that these references to equity could potentially fulfil a variety of roles or functions. Some of these roles are highly problematic. There is no place in our law for the notion that enrichment claims are equitable in the sense that the courts enjoy some general judicial discretion to award restitution according to the circumstances or facts of the case. Enrichment law does not occupy some elevated moral position where judges may rely to a greater extent on their sense of fairness than in other areas of law. However, references to equity could also serve other functions …
€ (Hein Online)
du Plessis, JJ, Equity, fairness and unjustified enrichment: civil-law perspective. Tydskrif vir Hedendaagse Romeins-Hollandse Reg (Journal for Contemporary Roman-Dutch Law), 83(1) (2020), 1-22.
First posted 2020-05-01 06:28:49
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