The requirement of excusable mistake in the context of the condictio indebiti: Scottish and South African law compared

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South African Law Journal

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Juta Law


University of Cape Town

Both Scotland and South Africa recognize a requirement of excusable mistake in the context of the condictio indebiti, the action for the recovery of mistaken payments. Since the law of unjustified enrichment in both jurisdictions is essentially civilian in origin, this resemblance is unsurprising. However, the requirement has in fact evolved very differently in each of these jurisdictions. While Scottish law demonstrates the relatively orderly and linear development of the excusability requirement from its origins in Roman law, the influence of the ius commune remedy of restitutio in integrum on the South African condictio indebiti has been a decisive factor in the progressive strengthening of this requirement in South African law. Drawing on Scottish and South African case law, this article identifies three distinct ways in which the concept of 'excusable mistake' can be understood, dubbed careless mistake, blameless mistake and justifiable mistake. Each of these versions of the requirement is evaluated, first, according to whether it is compatible with the principles underlying the condictio indebiti and, secondly, according to whether it is supported by any compelling argument of policy or equity. It is concluded that whereas the version of the requirement dominant in modern Scottish law is defensible as a matter of principle, any role which it might play as a mechanism for protecting the security of receipts is largely obviated by the defence of change of position or loss of enrichment. The second and third versions of the requirement, however, are found to be wholly incompatible with the principles underlying the condictio: whereas the second rests on an inappropriate analogy between mistake as a reason for restitution and mistake as an excuse for wrongful conduct, the third rests on a conception of the condictio indebiti - as a form of equitable intervention based on of the unconscionable conduct of the recipient - which is entirely alien to the principled basis of the action.