There is usually a tension in the law of unjustified enrichment when it comes to sanctioning a defence of passing on. The concept ‘passing on’ in the law of unjustified enrichment essentially entails that the claimant has shifted onto a third party the ‘financial’ burden that is consequent upon the defendant’s unjustified enrichment. Several jurisdictions formulate their enrichment doctrine requiring a ‘mirror-image loss-gain’, that is to say, the claimant can only recover from the defendant what he has lost to the defendant. If the claimant were allowed to recover more than his loss, the law would be punishing the defendant and enriching the claimant at the defendant’s expense. For this and other reasons some think that there should exist symmetry in the law of unjustified enrichment in that where the defence of change of position (loss of enrichment) is recognised, the passingon defence should equally be sanctioned as the reverse face of change-of-position defence on the claimant’s side. This paper explores these issues in depth and argues that the need for such symmetry is misconceived. The defence of passing on is, however, sustainable in certain cases and should be recognised not only for policy reasons but also for reasons of principle.
Aimite Jorge, Unjustified enrichment: should South Africa venture into the thick forest of passing-on defence?, Journal of Comparative Law in Africa, volume 4, issue 1, May 2017, pp145-164.