Determining the moment when enrichment liability is quantified : the curious case of Paschke v Frans
CITATION: Du Plessis, J. 2016. Determining the moment when enrichment liability is quantified : the curious case of Paschke v Frans. Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2005(4):655-689.
The original publication is available at https://journals.co.za/content/journal/jlc_tsar
A well-established principle of South African law, and indeed many other jurisdictions, governs the measure or quantum of claims based on unjustified enrichment. The principle is that we do not enquire into what the defendant obtained at the moment of the initial enriching event, but that we rather focus on whatever remains in the defendant’s estate. Or, to put it differently, the measure of an enrichment claim is not the value received, but the value remaining. But if the measure of enrichment is that of value remaining, at what moment is this value to be determined? This question was central to the recent decision of the supreme court of Namibia in Paschke v Frans.