Abstract
LL.D.
The purpose and main thrust of this thesis are to consider the nature, aim(s),
operation and extent of restitutio in integrum as a remedy where consensus is
obtained improperly, where iustus error is successfully raised and where a
contract is cancelled as a result of breach of contract.
A historical analysis indicates that restitutio in integrum in Roman law is
shrouded in uncertainty. Restitutio in integrum was an extraordinary and
equitable remedy aimed both at nullification of a valid transaction and the
reciprocal restoration of performance rendered. It was granted by the praetor
in cases of negotia stricti iuris where no other remedy was available to the
aggrieved party, inter alia where metus or dolus led to the conclusion of a
contract. Complete reciprocal restoration was the aim and a requirement of the
remedy. In cases of negotia bonne fidei, the remedies which were available in
respect of specific contracts, dealt with the situation. As the distinction between
negotia bonne fidei and stricti iuris faded, the need for an extraordinary remedy
lapsed. There is, indeed, a possibility that restitutio in integrum no longer
functioned as a separate remedy in the Justinian codification.
One would not have expected restitutio in integrum to be available as a separate
and extraordinary remedy in the Roman Dutch law of contract due to the fact
that the principles underlying the negotia bone fidei won the thy after the
reception of the Roman law in Europe. Such availability in that system can be
attributed to the fusion which took place between the Roman concept of restitutio
in integrum and the indigenous concept of "relief". It can be argued that the
Roman Dutch remedy of restitutio in integrum arose from the obligations which
the dictates of the bona fides imposed on the parties, whilst considerations
underpinning enrichment liability were also raised. Restitutio in integrum was,
however, still viewed as an equitable remedy and constituted a single remedy
with the double aim of nullification and reciprocal restoration.
Unlike Roman Dutch law, modern South African law distinguishes between
rescission and restitution. This makes it possible to consider separate bases for
rescission and restitution. It is submitted that the competence to rescind a
contract in the case of improperly obtained consensus arises from the dictates of
the bona fides which the law imposes on parties in the antecedent negotiation and
performance of contracts. Problems in respect of rescission must be viewed
against the background of rescission as a contractual remedy governed by the
dictates of good faith. Subsequent to rescission, no causa retinendi exists in
respect of the performance (or its value) which is to be restored and an
enrichment remedy is at hand. As far as restitution as a component of restitutio in integrum is concerned, it demonstrates all the characteristics attributed to a
developed enrichment action and it can be viewed as such pending the
development of a general enrichment action.
Restitutio in integrum was not applied in our common law in the instances of
mistake and the cancellation of contracts by virtue of breach of contract. Our
courts probably referred to restitutio in integrum in those circumstances as a
result of the paucity of other authority offered by our common law sources. It
is argued that the reliance theory underpins the iustus error doctrine. In the case
of iustus error no consensus exists and no reasonable reliance is created by the
other party which deserves protection. As no contract exists, performance
which has been rendered can be recovered with an enrichment remedy.
The "technical concept" of restitutio in integrum also has no role to play in the
case of breach of contract. It is submitted that the competence to cancel a
contract by virtue of breach of contract also arises from the dictates of good
faith. Subsequent to cancellation, no causa retinendi exists in respect of the
performance (or its value) which is to be restored and the reciprocal duties to
restore are enrichment based.
The conclusion is reached that the general principles of our law of obligations
have developed and evolved sufficiently to enable us to do without an
extraordinary remedy such as restitutio in integrum. The adoption of the
suggestions made will place the South African law on a modern basis
comparable to the approaches existing in related legal systems which are also
reviewed.