Can Estoppel be Raised Against an Eviction in Terms of PIE?

2017 ◽  
Vol 30 (2) ◽  
pp. 434-455
Author(s):  
Elmien WJ Du Plessis
Keyword(s):  
Case Law ◽  
Third Party ◽  
The Real ◽  
The Third ◽  
Tacit Consent ◽  
Bona Fide ◽  
The Third Party

Estoppel is a well-known defence against (or limitation on) the rei vindicatio. This would be the case for example where the owner by some representation creates the impression that a third party is the owner of a thing and that the third party has the capacity to alienate the property. The bona fide third party can, when the owner then institutes the rei vindication to recover his property, raise estoppel and preclude the real owner from claiming his property. Before 2002, if one wanted to evict an unlawful occupier from certain residential premises, one would institute the rei vindicatio. In Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA) the court, however, ruled that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be used in all instances of evicting people from urban residential premises. The question is: does estoppel serve as a defence/limit in the application of PIE? Surprisingly few cases deal with this issue. The court in Joe Slovo made a few remarks about the possibility of using estoppel as a defence against the rei vindicatio by looking at the interpretation of ‘tacit consent’ required by PIE. This article will interpret provisions of PIE and look at case law that deals with the use of estoppel in lease cases. It will conclude by remarking on the feasibility of using estoppel as a defence in PIE eviction cases.

scholarly journals Subrogation of the Guarantee Fund and liability of the persons failing to take out mandatory insurance: an endorsement of the prevailing opinion of Portuguese courts

2019 ◽  
Vol 4 (2019/4) ◽  
Keyword(s):  
Case Law ◽  
Third Party ◽  
The Third ◽  
Current Trends ◽  
Motor Insurance ◽  
The Third Party

The paper discusses the problem of subrogation of the Guarantee Fund, especially in a case when a person who failed to take out the third-party liability motor insurance was not liable for the accident. The author presents current trends in Portuguese case-law on this matter and examines whether the Guarantee Fund should be entitled to claim the redress.

scholarly journals Third Party Fraud inducing Material Mistake Slip Knot Investments 777 (Pty) Ltd v du Toit 2011 4 SA 72 (SCA)

2017 ◽  
Vol 14 (7) ◽  
pp. 186
Author(s):  
Chris James Pretorius
Keyword(s):  
Supreme Court ◽  
General Rule ◽  
Case Law ◽  
Third Party ◽  
The Third ◽  
The Supreme Court ◽  
The Law ◽  
The Third Party ◽  
Court Of Appeal ◽  
Slip Knot

In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party. The position prior to this decision was uncertain and characterised by inconsistency, mostly occasioned by the application of the iustus error doctrine together with fault. The Supreme Court of Appeal found that in the circumstances the mistaken party was liable, despite the fraud of the third party, on the basis of the reliance theory. The decision is commendable for bringing a measure of certainty to the law of mistake on this point and indicating that the reliance theory (as opposed to the iustus error doctrine) is the appropriate means to resolving such cases. Nevertheless, it is suggested that although the general rule implied by the court's approach is entirely apposite, there may well be exceptional instances where on the basis of relevant policy considerations the reliance theory should not prevail and the mistaken party should be absolved from contractual liability. In this manner reliance, which at first seems reasonable for being induced by the conduct of the contract denier, may upon further reflection be regarded as unreasonable based on the consideration of risk creation at the hand of the contract assertor, for instance. Admitting exceptions in appropriate circumstances would also provide a degree of consonance with earlier case law, where, even if the court's approach was open to theoretical criticism, a court has intuitively felt that liability should not lie.

scholarly journals Interference of the intervener in contractual relations: means of protecting a bona fide creditor

2021 ◽  
pp. 83-98
Author(s):  
Mikhail Leonidovich Osipov ◽  
Anastasiya Aleksandrovna Guseva
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Economic Losses ◽  
The Third ◽  
Bona Fide ◽  
The Subject ◽  
Contractual Relations ◽  
The Third Party

The subject of this article is relations that arise to interference of the third party (intervener) in contractual relations of the parties. The author considers the question of possible means of protecting a bona fide creditor from the actions of an intervener, such as challenging of the transaction consummated between the obligator and the intervener, as well as recovery of tort damages from the intervener for the benefit of a bona fide creditor. The article examines the issues emerging in the context of application of both methods of protection. The conclusion is made on the possibility of use of both methods, in preference to recovery of damages. It is noted that challenging of the transactions allows to equitably redistribute the burden of proof in disputes with a mala fide intervener, while the tort claim implies the possibility of recovering pure economic losses from a mala fide intervener. The authors indicate that the current Russian legislation does not contain dogmatic obstacles for application of such method of protecting a mala fide intervener.

Resolving tension from the third-party forgiveness effect

2014 ◽  
Author(s):  
Jaclyn M. Moloney ◽  
Chelsea A. Reid ◽  
Jody L. Davis ◽  
Jeni L. Burnette ◽  
Jeffrey D. Green
Keyword(s):  
Third Party ◽  
The Third ◽  
The Third Party

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

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