Abstract

It is highly contested in modern contract law whether the victim of breach may lay claim to the profits of the party in breach. South African law generally does not support such a remedy, but a comparative perspective reveals a rather more complex picture. The fact pattern singled out for attention here is that of a seller profiting from breach of contract through selling the same object twice, and the legal system chosen for comparison is German law, which allows the first buyer to lay claim to the seller’s proceeds from the second sale. It is then indicated how the origins of this remedy rather curiously can be traced to the claim of a creditor against a debtor to give up reimbursement arising from impossibility of performance. These developments are then contrasted to the parallel evolutionary process that gave rise to modern South African law, which does not recognise this form of relief. In conclusion, it is considered whether South African law should follow the German example. The finding is that this is undesirable on grounds of principle as well as policy.