Ferrari v Ruch (SA 6 of 1993) [1994] NASC 4 (14 October 1994)

Ferrari v Ruch (SA 6 of 1993) [1994] NASC 4 (14 October 1994)

The sums transferred by the Plaintiff to the Defendant were loans, not investments. The loan agreements were prohibited by Exchange Control Regulations and thus unenforceable. However, to prevent unjust enrichment and due to the Defendant's greater turpitude, the pari delictum rule is relaxed to allow restitution of...

Source-derived case information.

Citation
[1994] NASC 4
Parties
Appellant/defendant: L. Ferrari; Respondent/plaintiff: W. Ruch
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
14 October 1994
Case Number
SA 6 of 1993
Procedural Posture
Civil Appeal / Supreme Court Judgment
Outcome
Appeal upheld in part; Plaintiff entitled to capital repayment but not interest; no order as to costs of appeal; costs in High Court to Plaintiff.
Legal Topics
Illegality of Contract, Unjust Enrichment, Relaxation of Pari Delictum Rule, Exchange Control Regulations, Restitution of Capital, Interest on Unlawful Loans
Source Language
english
Contract Law Exchange Control Restitution Illegality of Contract Unjust Enrichment Relaxation of Pari Delictum Rule Exchange Control Regulations Restitution of Capital +1 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 15 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

L. Ferrari

Appellant/defendant

W. Ruch

Respondent/plaintiff

Procedural Posture

Civil Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the sums transferred by the Plaintiff to the Defendant were loans or investments
  2. 2 Whether the agreement between the parties was prohibited by Exchange Control Regulations
  3. 3 Whether the Plaintiff is entitled to recover the capital and/or interest under an illegal contract

Ratio Decidendi

The sums transferred by the Plaintiff to the Defendant were loans, not investments. The loan agreements were prohibited by Exchange Control Regulations and thus unenforceable. However, to prevent unjust enrichment and due to the Defendant's greater turpitude, the pari delictum rule is relaxed to allow restitution of the capital but not the interest.

Court Disposition

Appeal upheld in part; Plaintiff entitled to capital repayment but not interest; no order as to costs of appeal; costs in High Court to Plaintiff.

Orders

  • Judgment for Plaintiff for 185,790 Swiss Francs and 142,790 Swiss Francs or Namibian equivalent at payment date, with interest from judgment date at legal rate.
  • Plaintiff to file affidavit on exchange rate for execution.