Dissertations / Theses on the topic 'Unjustified enrichment'

Includes bibliographical references.
In this thesis, aspects of the South African law of multi-party enrichment are compared with the equivalent rules of German law. Against the background of a general comparison of the German and South African law of unjustified enrichment, the following sets of factual circumstances are examined in detail: performance of the obligation of another; performance in accordance with an instruction; and performance in response to a cession. Rather than following a conventional comparative approach (viz where a chapter is devoted to each of the legal systems under consideration, and then comparisons are made in a final, analytical chapter), this thesis is structured as follows: each chapter begins with a comparative treatment of the legal context in which such situations arise. Then various factual permutations are treated, taking into account the German and South African approaches to such practical situations and the underlying policy factors that influence the law. On the basis of this critical evaluation, recommendations are made for the development of South African law.

This thesis analyses the doctrine of duress and its application in the law of contract and unjustified enrichment in South Africa. Following an initial examination of the historical development of the doctrine from its roots in Roman and Roman-Dutch law, the study focuses on the current legal position in the two areas of law under review, identifies the substantive and formal deficiencies in the current approach, and suggests, using comparative authorities, how the law might be developed. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test for duress is then proposed: one that concentrates on the question whether an illegitimate threat was made, which induced a contract in that it left the other person no reasonable choice but to succumb to the proposal. Additionally, the need for South African contract law to recognise and deal with cases of economic duress is emphasised. The study then shifts to an examination of the position in situations where non-contractual performances have occurred under duress: cases that are decided in terms of the principles of the law of unjustified enrichment. The current position is reviewed, and it is shown that the approach to duress cases is substantially different to the approach that applies in contract. An attempt is made to reconcile this problem. From a structural perspective, the nature and application of the relevant enrichment action where a non-contractual performance is made under duress (the condictio indebiti) is also investigated, in the light of approaches to enrichment adopted in both Germany and England, in an attempt to make better sense of this enrichment action in the South African context. The study closes with an analysis of the various contractual, delictual and enrichment remedies that are available once a case of duress has been proved.

The thesis deals with the recovery of benefits that have been transferred under illegal or immoral transactions, in particular from the perspective of the law of unjustified enrichment. The rules governing this area of law in all the legal systems that are studied originate in classical Roman law, which principally granted a remedy for the recovery of benefits conferred under a tainted cause (the so-called condictio ob turpem vel iniustam causam). Only where both parties were involved in an immoral transaction was recovery barred, according to the maxim in pari delicto potior est possidentis. However, modern law usually applies the bar to recovery not only to immoral but also to illegal transactions. This extension of the bar, as well as its strict legal consequence of completely barring recovery, can lead to overly harsh results. The comparison of two civilian legal systems, Germany and Italy, will demonstrate modern civilian approaches on how to mitigate the strict consequences of the bar. The study of English law identifies a very different approach to the solution of the same problem. The law of the mixed legal system of Scotland started from a civilian basis in this area. However, it subsequently came under the influence of the common law, which received only the bar to recovery, and developed it into a principle of non-recovery in cases of illegality. The thesis argues that it is undesirable to follow the common law influences in the Scots law of unjustified enrichment. Scots law should rather develop its civilian roots and proceed on the assumption that transfers made under immoral and illegal transactions are recoverable in principle. It is also argued that Scots law has sufficient authority to restrict the pari delicto rule to its original scope and thereby apply the bar to recovery only to cases of mutual turpitude.

Compulsion can be defined as the improper application of harm or threats thereof to induce an act or omission. This thesis deals with the treatment of compulsion in Scottish private law, and particularly the law of "restitution" or unjustified enrichment. The applicable rules (especially those relating to force and fear and certain enrichment-based remedies) are first examined from a historical perspective, taking into account their Roman origins, reception and development in Scotland (particularly by the Institutional writers) and exposure to common law influences. Thereafter their relationship to Roman Dutch law (which parallels the Institutional era), South African law (which shares its mixed character) and German law (which represents a continuation of the civilian tradition) is examined. Against this background, the existing law is evaluated. It is shown that, although underdeveloped, the law is sufficiently rich in principle to cover a broad range of cases of compulsion. It is further argued that, within the context of the Scots law of unjustified enrichment, it is undesirable to regard compulsion as an "unjust factor" or ground for recovery. It is proposed that the recoverability of compelled transfers should rather be determined by asking whether they are retained without a legal ground. If undue, the transfer in principle should be recoverable. Recovery should only be excluded if, amongst others, the transferor acted in a way which indicated that the recipient could keep the transfer, or (in the case of an illegal or immoral transfer) if both parties were tainted by turpitude. Compulsion then plays the limited role of being but one consideration which indicates that these rules should not apply. If due, the transfer in principle should not be recoverable. Recovery should only be allowed if the compulsion was so serious that the transfer cannot be regarded as a valid act of fulfilment.

Šiame magistro darbe nagrinėti pažeidėjo gautos naudos išreikalavimo, kaip civilinio teisių gynimo būdo, ypatumai. Pirmoje darbo dalyje pateikiamas nagrinėjamos temos koncepcinis įvertinimas ir kiti bendrieji klausimai. Išaiškinta, kad pažeidėjo gauta nauda gali būti išreikalauta pagal žalos atlyginimo taisykles. Būtent, vadovaujantis CK 6.249 straipsnio 2 dalimi, pažeidėjo gauta nauda pripažįstama nukentėjusiojo nuostoliais tiek, kiek nukentejusiojo netiesioginiai nuostoliai atitinka pažeidėjo gautą naudą. Likusi dalis išreikalaujama remiantis turto gavimo be pagrindo ir nepagrįsto praturtėjimo normomis. Antrojoje dalyje išanalizuotos bendrosios pažeidėjo gautos naudos išreikalavimo, kaip civilinio teisių gynimo būdo, taikymo pagrindai ir sąlygos. Prieita prie išvados, kad kaltė negali būti būtina sąlyga taikant nepagrįsto praturtėjimo normas. Pateikta analizė, kad subsidiarus nepagrįsto praturtėjimo taikymas turi būti suprantamas taip: pirmiausia turi būti remiamasi civilinės atsakomybės normomis, jei jų taikymas negalimas arba nepasiekiamas norimas rezultatas, papildomai taikomos nepagrįsto praturtėjimo normos jam pasiekti. Trečioji dalis skirta veiksnių, turinčių įtakos pažeidėjo gautos naudos dydžiui, analizei. Nurodoma, kad gauta nauda turi būti suprantama ne tik kaip turto padidėjimas, bet ir nesumažėjimas. Motyvuojama, kad priklausomai nuo neteisėtų veiksmų pobūdžio, gautos naudos išraiškos forma gali būti tiek kaina, tiek vertė. Tam, kad nebūtų pernelyg išplečiamos... [toliau žr. visą tekstą]
The subject matter of the article is to reveal the issues of an account of profits remedy. The substance of aforementioned remedy is considered in the first part of this article. It is asserted that profit made by wrongful conduct must be claimed in accordance to the essential function of civil liability – compensation. Article 6.249 part 2 of Lithuanian Civil code operates to strip a defendant that amount of profit which coincides with the plaintiff‘s indirect damages. The rest profit made by wrongful conduct is reversed by action in unjustified enrichment. The circumstances in which annotated remedy is available is rationalised and explained in the second part of the article. One of the drawn conclusions is that fault can not be a prerequisite for action based on unjustified enrichment. It is submitted that subsidiarity denotes the subordination of action in unjustified enrichment where another claim in fact offers a claimant a basis of recovery. However, the action in unjustified enrichment must not be excluded when the claimant is barred to recover his loss by the primary action. Third part of this article introduces the essential yardsticks which determine the measurement of profit accrued to the defendant. It is preferred that the profit accrued to the defendant should be measured by actual profit made and, then appropriate, by expense saved. It is proved that the benefit conferred on the defendant is measured either by market value or price received. The measurement... [to full text]

Thesis (LLD)--Stellenbosch University, 2013.
ENGLISH ABSTRACT: This dissertation examines the approach to statutory formalities in South African law. It focuses primarily on formal requirements which result in nullity in the event of non-compliance, and in particular, on those prescribed for alienations of land (section 2(1) of the Alienation of Land Act 68 of 1981) and suretyships (section 6 of the General Law Amendment Act 50 of 1956). To provide context, the study commences with a general historical overview of the development of formal requirements. It also considers the advantages and disadvantages of formalities. The conclusion is reached that an awareness of both is required if a court is to succeed in dealing with the challenges posed by statutory formalities. The dissertation then considers more specific aspects of the topic of formal requirements, including the difference between material and non-material terms. It also reveals that the current interpretation of statutory formalities is quite flexible and tends towards a conclusion of validity if reasonably possible. However, cases involving unnamed or undisclosed principals present particular challenges in this context, and the possibility of greater consistency, without the loss of theoretical soundness, is investigated. A discussion of what should be in writing, and with what exactitude, necessarily involves a consideration of the extent to which extrinsic evidence is admissible. The interaction between formal requirements and the parol evidence rule is therefore investigated. Special attention is paid to incorporation by reference. After an examination of the common-law approach to this topic, the conclusion is reached that room exists for developing this area of South African law, especially where a sufficient reference to another document is concerned. Rectification also enjoys detailed examination, due to the unique approach adopted in South African law. Where formalities are constitutive, a South African court first satisfies itself that a recordal complies with these requirements ex facie the document, before it will consider whether rectification may be appropriate. An analysis of both civilian and common-law judgments suggests that the South African approach is based on a misconception of the purpose of rectification. This leads to the further conclusion that the requirement of ex facie compliance should be abolished as a separate step and that a court should rather consider whether awarding a claim for rectification would defeat the objects of formalities in general. Finally, the remedies available to a party who performs in terms of an agreement void for formal non-compliance and the effect of full performance in terms of such an agreement, receive attention. An investigation of the remedies available in other legal systems reveals that the South African approach of limiting a party to an enrichment claim is unnecessarily restrictive. It is argued that local courts should reconsider their exclusion of estoppel in this context, particularly in cases where one party’s unconscionable conduct has led the other to rely on the formally defective agreement. In cases of full performance, no remedies are available, but it is argued that a distinction should be drawn between reciprocal and unilateral performances.
AFRIKAANSE OPSOMMING: Hierdie proefskrif ondersoek die benadering tot statutêre formaliteite in die Suid-Afrikaanse reg. Dit fokus hoofsaaklik op die formele vereistes wat lei tot nietigheid in die geval van nie-nakoming, en in die besonder dié wat voorgeskryf word vir die vervreemding van grond (artikel 2 (1) van die Wet op Vervreemding van Grond 68 van 1981) en borgstellings (artikel 6 van die Algemene Regswysigingswet 50 van 1956). Ten einde die nodige konteks te verskaf, begin die studie met ‘n algemene historiese oorsig van die ontwikkeling van formaliteite. Dit oorweeg ook die voor- en nadele van formaliteite. Die gevolgtrekking is dat ‘n bewustheid van beide vereis word indien ‘n hof die uitdagings wat deur statutêre formaliteite gestel word, suksesvol wil hanteer. Die proefskrif oorweeg dan meer spesifieke aspekte van formaliteite, insluitende die verskil tussen wesenlike en nie-wesenlike bedinge. Dit toon ook dat die huidige opvatting van statutêre formaliteite redelik buigsaam is en tot ‘n bevinding van geldigheid lei waar dit redelikerwys moontlik is. Gevalle van onbenoemde of versweë prinsipale bied egter besondere uitdagings in hierdie verband en die moontlikheid word ondersoek om ‘n meer konsekwente, maar tegelyk teoreties-gefundeerde benadering te volg. ‘n Bespreking van wat op skrif moet wees, en met watter mate van sekerheid, behels noodwendig ‘n oorweging van die mate waarin ekstrinsieke getuienis toelaatbaar is. Die interaksie tussen formaliteite en die parol evidence-reël word derhalwe ondersoek. Spesiale aandag word bestee aan inlywing deur verwysing. Na oorweging van die benadering in gemeenregtelike stelsels, word die gevolgtrekking bereik dat ruimte bestaan vir ontwikkeling op hierdie gebied, veral met betrekking tot ‘n voldoende verwysing na ‘n ander dokument. Rektifikasie word ook breedvoerig hanteer, vanweë die eiesoortige benadering in die Suid-Afrikaanse reg. Waar formaliteite konstitutief van aard is, sal ‘n Suid-Afrikaanse hof eers vasstel dat ‘n ooreenkoms ex facie die dokument aan die formaliteite voldoen, voordat dit sal oorweeg of rektifikasie moontlik is. ‘n Ontleding van sivielregtelike en gemeenregtelike beslissings dui daarop dat die Suid-Afrikaanse benadering op ‘n wanbegrip van die doel van rektifikasie gebaseer is. Dit lei tot die verdere gevolgtrekking dat die vereiste van ex facie nakoming as ‘n afsonderlike stap afgeskaf behoort te word en dat ‘n hof eerder moet oorweeg of die toestaan van ‘n eis vir rektifikasie die oogmerke van die formaliteite in die algemeen sou verydel. Laastens word aandag geskenk aan die remedies beskikbaar aan ‘n party wat presteer ingevolge ‘n ooreenkoms wat nietig is weens nie-nakoming van formaliteite, asook die effek van volle prestasie kragtens so ‘n ooreenkoms. In eersgenoemde geval beperk die Suid-Afrikaanse reg daardie party tot ‘n verrykingseis. ‘n Ondersoek van die remedies beskikbaar in ander regstelsels toon dat dit onnodig beperkend is. Dit word aangevoer dat Suid-Afrikaanse howe die uitsluiting van estoppel in hierdie konteks moet heroorweeg, veral in gevalle waar een party se gewetenlose optrede daartoe lei dat die ander party staat maak op die formeel-gebrekkige ooreenkoms. In gevalle van volledige prestasie is daar geen remedies beskikbaar nie, maar dit word aangevoer dat ‘n onderskeid getref moet word tussen wedersydse en eensydige prestasies.

Subsidiarité de l’action en enrichissement sans cause, vocation subsidiaire du droit commun, demande subsidiaire, subsidiarité de l’obligation des associés de société à risque illimité, etc. : la subsidiarité est récurrente en droit privé. Pourtant, le mécanisme qu’elle met en oeuvre n’est pas clairement perçu. La subsidiarité met de l’ordre dans le droit : elle est une technique de coordination d’éléments concurrents, qui subordonne à la défaillance de l’élément appelé premier l’accès à l’élément qualifié de subsidiaire. Tant que l’élément premier n’est pas défaillant, c’est-à-dire tant qu’il peut produire son effet juridique, l’élément subsidiaire est bloqué. La subsidiarité a pour finalité d’instaurer une hiérarchie entre les éléments concernés : elle affirme la primauté de l’élément premier, vu avec faveur, sur l’élément subsidiaire, qui est une solution de secours. Ce mécanisme trouve une application majeure en matière d’obligation. Une obligation est subsidiaire lorsqu’elle est subordonnée à la défaillance d’une autre obligation ; elle est ainsi affectée d’une condition suspensive. Le débiteur premier est celui dont le paiement normal est attendu, le débiteur subsidiaire celui dont l’intervention est vue comme pathologique. Le débiteur subsidiaire peut opposer toutes les exceptions qui attestent de ce que l’obligation première n’est pas défaillante. Pour agir contre le débiteur subsidiaire, le créancier doit établir cette défaillance, qui est définie de manière variable selon les hypothèses. L’obligation subsidiaire tient une place importante dans les opérations juridiques à trois personnes ; elle permet également de porter un regard nouveau sur la solidarité
Subsidiarity of unjustified enrichment claims, subsidiarity of the lex fori, subsidiary pleadings, subsidiary obligation of the members of companies with unlimited liability, etc. : subsidiarity is recurrent in private law. However, its mechanism is not clearly understood. Subsidiarity creates order in law. It is a coordination technique of rival elements, which makes access to the subsidiary element subject to the default of the first element. As long as the first element can produce its effect, the subsidiary element is blocked. The purpose of subsidiarity is to create a hierarchy between those elements: it states the primacy of the first element, seen with favor, on the subsidiary element, which is considered a backup. This mechanism is useful in contract law. An obligation is subsidiary when it is subject to the default of another obligation; it matches the pattern of a conditional obligation. Normal payment is expected from the debtor of the primary obligation; the intervention of the subsidiary debtor is seen as pathological. In order to sue the subsidiary debtor, the creditor must prove that the primary obligation is in default. The former can invoke all the exceptions which prove that this event, which can be defined in a variety of ways, has not occurred. The concept of subsidiary obligations is important in legal operations involving three persons, and encourages to reconsider our understanding of solidary obligations

This thesis analyses the doctrine of duress and its application in the law of contract and unjustified enrichment in South Africa. Following an initial examination of the historical development of the doctrine from its roots in Roman and Roman-Dutch law, the study focuses on the current legal position in the two areas of law under review, identifies the substantive and formal deficiencies in the current approach, and suggests, using comparative authorities, how the law might be developed. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test for duress is then proposed: one that concentrates on the question whether an illegitimate threat was made, which induced a contract in that it left the other person no reasonable choice but to succumb to the proposal. Additionally, the need for South African contract law to recognise and deal with cases of economic duress is emphasised. The study then shifts to an examination of the position in situations where non-contractual performances have occurred under duress: cases that are decided in terms of the principles of the law of unjustified enrichment. The current position is reviewed, and it is shown that the approach to duress cases is substantially different to the approach that applies in contract. An attempt is made to reconcile this problem. From a structural perspective, the nature and application of the relevant enrichment action where a non-contractual performance is made under duress (the condictio indebiti) is also investigated, in the light of approaches to enrichment adopted in both Germany and England, in an attempt to make better sense of this enrichment action in the South African context. The study closes with an analysis of the various contractual, delictual and enrichment remedies that are available once a case of duress has been proved.

Václav Pilík. Unjustified Enrichment in the Czech Law. PhD thesis 1 Abstract This PhD thesis explores the legal institution of unjustified enrichment in the Czech private law. The subject is dealt in larger historical, theoretical and partly comparative relationships in order not to be reduced only to internal problems of the national regulation. A general view of unjustified enrichment (part one of this work), providing a systematic introduction to the problem, is hinder by different approaches, their overlapping and largely opened discourse on conceptual questions. Despite all that difficulties, found out by comparative legal studies of unjustified enrichment in the civil law and common law systems, it is necessary to undergo an attempt at expression of common features of the unjustified enrichment as a legal concept. Supposing that, we can describe three common features of unjustified enrichment: it is enrichment obtained at the expense of another and in a lawless way; the modern legal institute of unjustified enrichment rests on fragmentary historical basis, substantially completed by national factors of legal development (legislation, justice and doctrine); the enrichment is viewed as objective fact (at least in certain states of facts). Legal development of unjustified enrichment runs differently in...

碩士
中國文化大學
法律學系
104
First, this paper will discuss the topic about what is the meaning of returning unjustified enrichment in public law. The main occurrence of this topic has three aspects which are “the change of property”, “based on the relationship of public law” and “without legal reasons”. This phenomenon caused by the lack of legal reason and the request of changing property. The purpose of establishing the system of returning unjustified enrichment in public law is to adjust the relationship of various public laws without using any legal reason of changing someone’s property situation, but to follow the appropriate situation of the law. Therefore, returning unjustified enrichment in public law and returning unjustified enrichment in civil code are parallel systems with similar functions. The returning unjustified enrichment in public law can also divided into three categories based on the right of request or the request person. Those three types are "the request from people to administrative agency ", "the administrative agencies request to each other " and "the administrative agency request to people ". Under the legal stability of the public law, the request of the property law claims that it has to obey the limitation period, neither it is administrative agency request to people nor people request to administrative agency. While determine whether the returning unjustified enrichment is valid in the public law cases. The cases must go through all three steps which are “the change of property”, “based on the relationship of public law" and “without legal reasons ".

strana 259 Unjustified Enrichment in the Comparative Perspective Abstract The aim of the thesis is the legal research of important results concerning unjustified en- richment that have been attained in foreign jurisprudence and judicial opinions, especially within the German legal family, and their comparative application to all provisions of the New Czech Civil Code ("NCC") regulating unjustified enrichment, including their rela- tion to other parts of civil law. The thesis thus draws extensively from Austrian and Ger- man jurisprudence and case law, from the Draft Common Frame of Reference, from Swiss law and from comparative literature; further legal orders are also mentioned and a refined translation of relevant foreign provisions is included in the appendix. The thesis does not include a mere description, but rather follows the interests of Czech law and aims to make a contribution to Czech jurisprudence and application the of law. Accord- ingly, the thesis is also founded on complete research of the Czech Supreme Court case law made in and after 2010. The thesis comes to a number of conclusions (summarized in the itemized resumé) which may be deemed for original from the point of view of the Czech legal discourse. These conclusions corroborate the hypothesis that the Czech law of unjustified...

Unjustified Enrichment in Business Law Abstract The aim of my thesis is to analyse the concept of unjustified enrichment in connection with the commercial law. In fact this topic is usually described in the civil law studies and at the same time the unjustified enrichment is minor topic compared to the obligations arising from the contracts. This is the reason why I have chosen this issue describe and focus on the business aspects. The thesis is composed of seven chapters. Chapter one as an introduction defines basic legislation acts, which I am dealing with throughout the thesis and roughly describes there are changes in connection with the extensive recodification of the Czech private law. Chapter two is subdivided into two parts. Part one focuses on the origin of the unjustified enrichment in Ancient Rome as the base for the civil law. Part two provides an outline of past legislation within the territory of the Czech Republic until its establishment. Chapter three concentrates on the legislation effective until 31 December 2013. It illustrates the approach to decision-making by the Supreme Court including the decision-making in connection with the limitation of rights according to Commercial Code. Chapter four analyses the changes after New Civil Code came into force in relation to commercial law. Here...

Dissertação de Mestrado em Direito: Especialidade em Ciências Juridico-Forenses apresentada à Faculdade de Direito
Nos dias que correm, em que o sistema financeiro se encontra debilitado, é fundamental que os Estados encontrem mecanismos de combate ao crime, bem como, que os mesmos sejam capazes de recuperar a riqueza resultante da prática de tais crimes.A reação penal dos Estados têm-se centrado na aplicação de sanções aos arguidos, deixando de lado os lucros.A nível internacional tem sido proposto o Confisco, como um mecanismo imprescindível, preterindo a sua proibição, procurando por sua vez, um maior Confisco, admissível no quadro de um Estado de Direito. O Tribunal Europeu dos Direitos do Homem já se pronunciou, várias vezes, pela conformidade dos mecanismos de Confisco.Face a esta constatação, a presente dissertação tem como objectivo conhecer da possibilidade de Confisco, bem como a sua distinção em relação ao enriquecimento ilícito/injustificado. Tendo como por base a posição do Tribunal Europeu dos Direitos do Homem na condenação dos Estados, ou não, em matéria de Confisco.Nos dias que correm, em que o sistema financeiro se encontra debilitado, é fundamental que os Estados encontrem mecanismos de combate ao crime, bem como, que os mesmos sejam capazes de recuperar a riqueza resultante da prática de tais crimes.A reação penal dos Estados têm-se centrado na aplicação de sanções aos arguidos, deixando de lado os lucros.A nível internacional tem sido proposto o Confisco, como um mecanismo imprescindível, preterindo a sua proibição, procurando por sua vez, um maior Confisco, admissível no quadro de um Estado de Direito. O Tribunal Europeu dos Direitos do Homem já se pronunciou, várias vezes, pela conformidade dos mecanismos de Confisco.Face a esta constatação, a presente dissertação tem como objectivo conhecer da possibilidade de Confisco, bem como a sua distinção em relação ao enriquecimento ilícito/injustificado. Tendo como por base a posição do Tribunal Europeu dos Direitos do Homem na condenação dos Estados, ou não, em matéria de Confisco.
At the present times, in which the financial system is quite damaged and weak it is essential that the sates find out mechanisms to fight against crime, as well as that the same might be able to recover the resulting wealthy that comes from such crime practises. States criminal reaction has been focused in the defendant’s sanctions application leaving aside the profits. At international level confiscation has been purposed as an indispensable mechanism, neglecting its prohibition, and, once more looking for a more appropriate confiscation in the frame of the State of Law. The European Court of Man’s Rights has already pronounced, several times, about the conformity of confiscation mechanisms. Assuming this confirmation, the present essay has as main purpose to know distinction related to unjustified/illicit enrichment. Having as basis the European Court of Man’s Rights conviction, or not in what confiscation is concerned.At the present times, in which the financial system is quite damaged and weak it is essential that the sates find out mechanisms to fight against crime, as well as that the same might be able to recover the resulting wealthy that comes from such crime practises. States criminal reaction has been focused in the defendant’s sanctions application leaving aside the profits. At international level confiscation has been purposed as an indispensable mechanism, neglecting its prohibition, and, once more looking for a more appropriate confiscation in the frame of the State of Law. The European Court of Man’s Rights has already pronounced, several times, about the conformity of confiscation mechanisms. Assuming this confirmation, the present essay has as main purpose to know distinction related to unjustified/illicit enrichment. Having as basis the European Court of Man’s Rights conviction, or not in what confiscation is concerned.

The thesis deals with the emergence of bank and non-bank entities that provide a range of unique transaction-based payment services broadly called Mobile Financial Services (MFS) to unbanked, underserved and underbanked persons via mobile phones. Models of MFS from Mobile Network Operators (MNOs), banks, combinations of MNOs and banks, and independent Mobile Financial Services Providers are covered. Provision by non-banks of ‘bank-type’ services via mobile phones has been termed ‘transformational banking’ versus the ‘additive banking’ services from banks. All involve the concept of ‘branchless banking’ whereby ‘cash-in/cash out’ services are provided through ‘agents.’ Funds for MFS payments may available through a Stored Value Product (SVP), particularly through a Stored Value Account SVP variant offered by MNOs where value is stored as a redeemable fiat- or mobile ‘airtime’-based Store of Value. The competitive, legal, technical and regulatory nature of non-bank versus bank MFS models is discussed, in particular the impact of banking, payments, money laundering, telecommunications, e-commerce and consumer protection laws. Whether funding mechanisms for SVPs may amount to deposit-taking such that entities could be engaged in the ‘business of banking’ is discussed. The continued use of ‘deposit’ as the traditional trigger for the ‘business of banking’ is investigated, alongside whether transaction and paymentcentric MFS rises to the ‘business of banking.’ An extensive evaluation of ‘money’ based on the Orthodox and Claim School economic theories is undertaken in relation to SVPs used in MFS, their legal associations and import, and whether they may be deemed ‘money’ in law. Consumer protection for MFS and payments generally through current statute, contract, and payment law and common law condictiones are found to be wanting. Possible regulatory arbitrage in relation to MFS in South African law is discussed. The legal and regulatory regimes in the European Union, Kenya and the United States of America are compared with South Africa. The need for a coordinated payments-specific law that has consumer protections, enables proportional risk-based licensing of new non-bank providers of MFS, and allows for a regulator for retail payments is recommended. The use of trust companies and trust accounts is recommended for protection of user funds. | vi
Public, Constitutional and International Law
LLD