3 Condictio Causa Data Causa Non Secuta PDF

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Summary

summary of the specific action of causa non secuta...

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CHAPTER 3 - CONDICTIO CAUSA DATA CAUSA NON SECUTA 

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Historical background: o

Roman law:  The condictio causa data causa non secuta was used extensively - its field of application was very wide, including: o To recover performance rendered under a real contract (which was only enforceable after performance); o To recover performance rendered under a condition that was not fulfilled; and o To recover performance rendered under a modus that was not fulfilled.

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Roman-Dutch law:  As the law of contract became generalised, the phenomenon of real contracts eventually ceased to exist.  Thus, the application of the condictio became restricted.

Application: o

General:  De Vos contends that the condictio is entirely obsolete, as the law of contract has been fully developed to provide a comprehensive range of remedies.  However, the courts have still recognised the condictio in three instances, namely: o To recover performance rendered under an unfulfilled modus; o To recover performance rendered under an unfulfilled future assumption; and o To recover performance rendered under an unfulfilled resolutive condition.  The common basis of liability in these instances is the fact that performance has been rendered under a valid cause ( cum causa), which has subsequently fallen away, rendering the performance sine causa.

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Unfulfilled modus:  Benoni Town Council v Minister of Agricultural Credit and Land Tenure: o A modus can be created either in the terms of a contract or in the bequests of a testament. o There are three kinds of modus:  A restriction or burden on the recipient in respect of the manner in which the performance is to be used;  A restriction or burden on the recipient in respect of the general purpose for which the performance is to be used (e.g. in the interest of any impersonal cause or an unnamed beneficiary); or  A restriction or burden on the recipient in respect of the specific purpose for which the performance is to be used (e.g. in the interest of particular cause or a named beneficiary). o In the event of non-fulfilment of one of the first two kinds of modus, contractual remedies must be used. o In the event of non-fulfilment of the third kind, the condictio causa data causa non secuta may be used.

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Unfulfilled future assumption:  De Vos:

Assumptions relate not only to past or present facts but also to future facts [ Williams v Evans ]. De Wet & Van Wyk: o The fundamental distinction between assumptions and conditions is that assumptions relate to uncertain past and present facts, while conditions relate to future uncertain facts [Fourie v CDMO Homes (obiter) ]. o

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Cancellation of the contract:  Baker v Probert: o Recovery of performance after cancellation of a contract due to breach is a distinctly contractual remedy and cannot be claimed using an enrichment action.

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Supervening impossibility of performance:  Kudu Granite Operations v Caterna: o The condictio ob causam finitam (i.e. the condictio sine causa specialis) can be used to recover payment if the impossibility is deemed to extinguish the contract from the moment of impossibility. o The condictio causa data causa non secuta applies where a suspensive condition or the like was not fulfilled. o Identifying the cause of action is not crucial, as the requirements of the two condictiones seem to be the same.

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