The application of the Zweikondiktionentheorie and the Saldotheorie in the South African law of unjustified enrichment

Abstract

In the South African law of unjustified enrichment two theories are evident in instances where reciprocal performance were made. The two theories are the Zweikondiktionentheorie and the Saldotheorie. Both theories are predominantly indirectly applied in South African court cases. The Zweikondiktionentheorie and the Saldotheorie originated in German law of unjustified enrichment. The Zweikondiktionentheorie recognises two instances of unjustified enrichment where reciprocal performance occurred. The Zweikondiktionentheorie may have inequitable results if one party loses the enrichment and institutes a defence of loss of enrichment. He/she will have a claim for unjustified enrichment against the other party and will not be required to return the property he/she had received. The Saldotheorie was developed in order to prevent inequity in instances where the defence of loss of position is applicable. The Saldotheorie recognises one instance of enrichment and the remaining balance of the enrichment is paid in satisfaction of the unjustified enrichment claim. This study aims to determine which of the abovementioned theories are more suitable for South African unjustified enrichment law. In order to determine which theory should be the preferred theory, certain criteria need to be satisfied. The criteria are applied to court cases where the Zweikondiktionentheorie and the Saldotheorie are evident in order to determine whether the Zweikondikitonentheorie or the Saldotheorie should be applied in South African law of unjustified enrichment.