The relevance of the plaintiff’s impoverishment in awarding claims based on unjustified enrichment

Du Plessis, Jacques (2009-01)

CITATION: Du Plessis, J. 2009. The relevance of the plaintiff's impoverishment in awarding claims based on unjustified enrichment. Stellenbosch Law Review = Stellenbosch Regstydskrif 20(3):494-516.

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The question whether the plaintiff has been impoverished is of central importance in the South African law of unjustified enrichment. Proof of impoverishment is a general requirement for enrichment claims, and according to the ''double ceiling'' rule, the measure of the claim is limited to the lesser of the plaintiff's impoverishment and the defendant's enrichment. It is argued that the justifications for according impoverishment such a prominent position are not strong, and that the impoverishment requirement must be relaxed in certain circumstances - most notably where the defendant is enriched through ''taking'' or infringing on the plaintiff's rights. The impossibility of applying the ''double ceiling'' rule in these circumstances does not present any major difficulties. As the experiences of other jurisdictions show, there are alternative tests that can provide levels of relief which adequately balance the interests of the parties.

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