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Failed Synallagmatic Contracts : Appraisal Of The Maxim "The Party Who Has Control And Can Insure Against The Loss Should Shoulder The Risk", Aimite Jorge
Aimite Jorge
The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, Unjustified Enrichment (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts …
Inflation In Unjustified Enrichment Claims: Reflections From Abroad On The New Brazilian Civil Code, Aimite Jorge
Inflation In Unjustified Enrichment Claims: Reflections From Abroad On The New Brazilian Civil Code, Aimite Jorge
Aimite Jorge
Inflation can be one of the risks assumed by the parties to a contract. But contractual terms may provide for monetary corrections (adjustments) to offset that risk in cases of regular inflation because the parties are in a bilateral agreement. The same may not hold true however for claims arising in unjustified enrichment because the parties are not necessarily in a bilateral agreement. They may find themselves in the position of two innocents because the events that brought about the decline of purchasing power of the currency were unconnected to them. In such cases, the change-of-position (loss of enrichment) defense …