Measuring Enrichment Liability in the Context of Unfinished Construction Projects

Abstract

Most aspects of construction projects mainly fall under contractual regime. However, when things go wrong such as when the project is abandoned for various reasons, they may create two different scenarios: A contract that is breached and a fixed structure left on the land of one party, which constitute an incomplete benefit transferred. The transfer of such benefit is initially made with a legal ground, but that ground has since ceased to exist. If some aspect of that benefit cannot be recovered under a contract, enrichment rules may be competent to solve the problem. How to measure the different aspects of that enrichment is however a problem that may have different interpretations according to different conceptions of the foundations of enrichment liability in a particular legal system. This article explores the measure of enrichment in such cases of failed bilateral contracts scenarios working from South African perspective. It argues that in cases of failed bilateral contracts generating an enrichment situation, sanctioning a dual measure of enrichment in a legal system may be an appropriate avenue.