Browsing by Author "Du Plessis, Jacques"
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- ItemThe condictio quasi indebiti(UNISA Press, 2010) Du Plessis, JacquesThis essay focuses on something called the condictio quasi indebiti. This condictio is not well-known in South African law. In fact, it features only twice in the law reports: first, almost a century ago, in a judgment of De Villiers JP in Van Wijk’s Trustee v African Banking Corporation,1 and then, more recently, in a judgment of Harms JA in Bowman, De Wet and Du Plessis NNO v Fidelity Bank Ltd.2 Something this rare may either be so precious that it deserves to be saved from obscurity, or it may be so insignificant that it deserves to be consigned to the past. The challenge is then to determine whether there is indeed any need for recognising such a condictio in modern South African law. In furtherance of a methodology favoured by the Jubilar, the perspective adopted here will be historical, taking Roman sources as the point of departure, and then enquiring whether these sources provide insights that are useful for modern purposes.
- ItemDetermining the moment when enrichment liability is quantified : the curious case of Paschke v Frans(Juta Law, 2016-06) Du Plessis, JacquesA 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.
- ItemGiving practical effect to good faith in the law of contract(Juta Law, 2018) Du Plessis, JacquesSouth African courts generally support the notion that good faith is an underlying value of the law of contract, as opposed to a rule or standard that could be relied on directly to promote fairness. However, some commentators have criticised this approach and pointed out that the private law codes of modern civil-law systems contain general clauses or rules to the effect that parties must act according to good faith. The contribution focuses on arguably the most prominent of these codified systems, namely German law, and seeks to determine whether its experiences with the practical application of a good faith clause do indeed suggest that South African law will benefit from according a more prominent status to good faith. After examining how German law narrowly defines good faith, and how the good faith clause fits in the broader context of the Constitution and the German Civil Code, it is shown how the clause fulfils three main functions. These are to “supplement” contractual duties, to “limit” parties in the way they exercise contractual rights, and to “correct” or modify contractual terms. This threefold division of basic functions is adopted as a structure within which a broad range of rules of South African law can be located. This comparative analysis enables a clearer understanding of how these rules of South African law currently give practical effect to good faith as value, or have the potential to do so in future. The conclusion is reached that it is not self-evident that our courts must elevate good faith to a general standard or rule in order to promote greater contractual fairness.
- ItemA hydraulic wave energy converter(Stellenbosch : Stellenbosch University, 2012-03) Du Plessis, Jacques; Van Niekerk, J. L.; Stellenbosch University. Faculty of Engineering. Dept. of Mechanical and Mechatronic Engineering.ENGLISH ABSTRACT: As a renewable energy source, wave energy has the potential to contribute to the increasing global demand for power. In South Africa specifically, the country’s energy needs may easily be satisfied by the abundance of wave energy at the South-West coast of the country. Commercially developing and utilizing wave energy devices is not without its challenges, however. The ability of these devices to survive extreme weather conditions and the need to achieve cost-efficacy while achieving high capacity factors are but some of the concerns. Constant changes in wave heights, lengths and directions as well as high energy levels and large forces during storm conditions often lead to difficulties in keeping the complexity of the device down, avoiding over-dimensioning and reaching high capacity factors. The point absorber device developed as part of this research is based on an innovation addressing the abovementioned issues. An approach is followed whereby standard "offthe- shelf" components of a proven hydraulics technology are used. The size of the device is furthermore adaptable to different wave climates, and the need for a control system is not necessary if the design parameters are chosen correctly. These characteristics enable low complexity of the device, excellent survivability and an exceptionally high capacity factor. This may lead to low capital as well as low operationand maintenance costs. In this paper the working principle of this concept is presented to illustrate how it utilises the available wave energy in oceans. The results obtained from theoretical tests correlate well with the experimental results, and it is proven that the device has the ability to achieve high capacity factors. As the device makes use of existing, "off-the-shelf" components, cost-efficient energy conversion is therefore made feasible through this research.
- ItemIllegal contracts and the burden of proof(Juta Law, 2015-01) Du Plessis, JacquesSouth African law, in line with a number of prominent jurisdictions, recognises the general rule that when the legality of a contractual term is in dispute, the party who alleges illegality bears the burden of proof. Possible justifications for the general rule are explored and it is concluded that the rule is supported by established principles of the law of evidence, as well as by the pacta servanda sunt principle, which requires that freely concluded agreements should be enforced. It further is concluded that in disputes over the legality of restraint of trade clauses there appears to be no compelling reason why the law should deviate from the general rule by exceptionally placing the burden of proof on the party seeking enforcement. The mere fact that parties sometimes agree to these terms in situations of inequality does not suffice. However, those who advocate greater sensitivity for the position that contracting parties find themselves in when they supposedly exercise their contractual autonomy express a legitimate concern. A solution supported here is that South African law should address this problem directly by extending the existing categories of cases of improperly obtained consent to include cases of exploitation of certain specific situations of weakness. Such a development would reinforce, rather than subvert, the pacta servanda sunt principle.
- ItemLessons from America? a South African perspective on the draft Restatement of the Law, Consumer Contracts(2018) Du Plessis, JacquesThe American Law Institute is drafting a Restatement of the Law, Consumer Contracts. It deals at a very broad level with various requirements for the formation, validity, and proof of consumer contracts and terms, and especially with how they are to be applied in modern commercial environments, characterised by the widespread use of standard terms in online contracting. At the heart of the Draft Restatement lies the notion that it reflects a ‘grand bargain’ or trade-off in American consumer contract law. While its rules follow a ‘permissive’ approach to assent, through granting businesses significant freedom to draft contract terms, the effect of these rules is balanced by greater ex post substantive control, through imposing mandatory restrictions on terms. The purpose of this paper is to view this central idea of the Draft Restatement, as well as some related features, from the perspective of South African consumer contract law. Aspects that enjoy attention include the treatment of standard contracts, rules on actual or deemed assent, various forms of substantive control, the relationship between common-law and statutory regulation of consumer contracts, restrictions on adducing evidence, and the most appropriate institutions for granting consumers effective relief.
- ItemProfessor Sir TB Smith en die ontwikkeling van die Skotse reg, oftewel, wat maak ’n regsakademikus suksesvol?(Juta Law Publishing, 2006-03) Du Plessis, JacquesINLEIDING: Die Skotse juris Professor Sir Thomas (TB) Smith QC (1915 - 1988) se nalatenskap is omstrede. Terwyl sommige krities staan teenoor die sterk klem wat hy geplaas het op die Romeinse, teenoor Engelse, wortels van die Skotse reg, het ander weer groot respek vir die pogings wat hy aangewend het om hierdie stelsel op ’n meer beginsel-gebaseerde grondslag te plaas. Die doel van hierdie bydrae is om aan die hand van die bogenoemde bundel bydraes deur Skotse en buitelandse regsgeleerdes, waarvan sommige hom persoonlik geken het, ’n paar gedagtes te opper oor hierdie betwiste nalatenskap. Veral interessant, vanuit ’n Suid- Afrikaanse perspektief, is om dit te kontrasteer met die´ van sy tydgenoot, en vriend, Professor JC de Wet (1912-1990) van Stellenbosch, en hieruit ’n paar afleidings te maak oor faktore wat die sukses van regsakademici kan beı¨nvloed.
- ItemThe relevance of the plaintiff’s impoverishment in awarding claims based on unjustified enrichment(Juta Law Publishing, 2009-01) Du Plessis, JacquesThe 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.
- ItemThe right of an attorney to claim payment of costs from a third party(Juta Law, 2016-08) Du Plessis, JacquesParties to a contract sometimes agree that one party will pay certain costs to the other party’s attorney. A typical clause to this effect, which featured in Barnett v Abe Swersky & Associates (“Barnett”), reads as follows: “The purchaser undertakes and agrees to effect payment to Abe Swersky & Associates of all their costs as between attorney and client relating to the drafting and drawing of these presents and the implementation of the terms and conditions thereof … .”