TABLE OF CONTENTS
2. A short historical overview5
3. Comparative law5
4. The way forward: South African law8
Du Plessis, in his journal article (and in reference to Scottish law) poses the question of what the notion of absence of legal ground is supposed to mean, and what its’ meaning entails on a general level.
He concludes that “The Scottish and South African legal systems are currently faced with important choices about the direction that the future development of their mainly civilian uncodified laws of unjustified enrichment should take. An important question which arises in this context is what meaning they will give to the core requirement that enrichment has to be 'without legal ground'.”
It is this meaning, and the context or substance given to it that forms the essence of this discussion.
Obtaining guidance from Roman law sources as to exactly what sine causa entails proves however problematic as unjustified enrichment was not recognized in Roman law as a source of obligations.
In Roman Dutch law the position changes when Hugo Grotius in his Inleidinge tot de Hollandsche Rechts-geleerdheid formulates an obligation from enrichment as arising “when one person without legal title derives a benefit from another’s property.” His writings also reflect the variety of meanings that the word causa bore in Roman law and his reference to the absence of a lawful cause seems to bear a broader meaning, such as the general absence of a justification for the enrichment.In his overview of the works of Grotius he concludes that it is vital to distinguish between the absence of legal ground in the form of a broader justification for allowing a claim.
In his article, Du Plessis does a comparative review of the law of unjustified enrichment in the South African and Scottish jurisdictions and finds that in both these jurisdictions, unjustified enrichment has the following similarities:
a)In both systems unjustified enrichment is based on uncodified foundations;
b)The common law has had little impact or effect on these foundations;
c)The pivotal requirement for enrichment liability in both systems is that enrichment should be sine-cause or without legal ground.
The sine causa requirement in Scottish law was addressed in Dollar Land v CIN Properties where Lord Hope found that “an obligation in unjustified enrichment is owed where the enrichment cannot be justified on some legal basis arising from the circumstances in which the defender was enriched. There can be no better justification for an enrichment than that it was obtained and is being retained in the exercise of a contractual right against the party who seeks to invoke the remedy.’ The question is if a legal title could serve as a justification for enrichment, does the absence of such title mean that the claim is to be awarded? Such absence certainly in principle gives rise to a claim in South African law, and this broad approach seems to find place in the Scottish law as well. This can be seen in Kleinwort Benson v Lincoln City Council where Lord Hope's opinion once again reflected a broader interpretation of the notion of the absence of a legal ground.
These views however still do not give any real substance to the notion of absence of legal ground.
Du Plessis tries to find substance for this notion by comparatively taking the French, Dutch, English and German systems under review. In the French and Dutch systems, the notion of the undue...