The author addresses the issue of limitation of a claim for unjust enrichment
arising from the nullity of a contract. The law provides that claims of nullity
are not subject to a limitation period. This rule should apply only to the performance
of contractual obligations and it should not be extended to claims for
unjust enrichment. These claims are subject to limitations according to settled
case law. Two pertinent conclusions emerge. Firstly, the decision to pursue a
claim for unjust enrichment remains at the discretion of the contracting party.
However, this uncertainty as to whether to assert the claim should not persist
indefinitely. Therefore, it is proposed that the claim for unjust enrichment be
subject to a limitation period. This period should commence from the moment
the contracting party becomes aware, or ought to have been aware, that
the contract was void and that they possessed a claim. Secondly, nullity does
not justify any benefits for either party involved in a void contract. All benefits
should be returned, and the party returning the benefit must, in turn, have a
claim for the restitution of any contributions it has made.
Key words: nullity, limitation, unjust enrichment, credit agreement, unfair
contract terms.