2. The condictio ex causa furtiva
On the other hand—and that takes us back to the field of private law—the condictio ex causa furtiva also still lives on in modern South African law.223 This would not be surprising if it were regarded as a special unjustified enrichment claim; the South African courts, after all, do not recognize a general enrichment action.224 Very widely, however, this specific condictio is held to be a delictual remedy,225 and thus one wonders what its practical significance might be: for the lex Aquilia, in its modern South African version, protects the injured party as comprehensively as its modern German statutory counterpart.
2~[4909] [4910] Textbooks on delict thus hardly ever mention the condictio ex causa furtiva, but here and there, though very rarely, it still becomes the subject of a court decision. A recent case in point is Clifford v. Farinha.221 The plaintiff had leased a BMW motorcar, which was subsequently, without his consent, taken and used by the defendant. When the defendant parked and left the car for a short while, it was stolen by a third party. What attracted the court to resort to the condictio ex causa furtiva was the rule of fur semper in mora. The defendant had secured the windows of the car and locked its doors. No fault was thus attributable to her as far as the loss of the car through (the second) theft was concerned, and the actio legis Aquiliae therefore appeared to be unavailable.[4911] But since she had herself committed an act of furtum, she carried the risk of accidental loss or damage.[4912] It is interesting to note that the defendant's conduct did not constitute theft in terms of South African criminal law, for it is a typical example of mere furtum usus. If that did not prevent the court from granting the condictio, we must be dealing here with the very last preserve in which the Roman notion of furtum survives in an unadulterated form.[4913]
More on the topic 2. The condictio ex causa furtiva:
- 2. Condictio ex causa furtiva
- The condictio ex causa furtiva
- 1. Condictio causa data causa non secuta
- Condictio causa data causa non secuta
- Condictio sine causa
- DE CONDICTIONE CAUSA DATA CAUSA NON SECUTA.
- DE CONDICTIONE FURTIVA.
- Condictio ob turpetn vel iniustam causam
- Condictio indebiti
- Condictio pretii
- Condictio indebiti
- The decline of causa
- Liability of the defendant under the condictio