- Title
- A study of the nature, function and availability of orders of restitutio in integrum and specific performance as remedies in South African law
- Creator
- Lambiris, Michael A
- ThesisAdvisor
- Kerr, A J
- Subject
- Restitutio in integrum (Roman law) Restitutio in integrum -- South Africa Remedies (Law) -- South Africa
- Date
- 1987
- Type
- Thesis
- Type
- Doctoral
- Type
- PhD
- Identifier
- vital:3703
- Identifier
- http://hdl.handle.net/10962/d1004752
- Description
- This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance.
- Description
- KMBT_363
- Description
- Adobe Acrobat 9.53 Paper Capture Plug-in
- Format
- 468 leaves, pdf
- Publisher
- Rhodes University, Faculty of Law, Law
- Language
- English
- Rights
- Lambiris, Michael A.
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