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.

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. / KMBT_363 / Adobe Acrobat 9.53 Paper Capture Plug-in